The 13th Juror

by John Lescroart

  “Same thing, aren’t they?”

  “Not exactly but that’s often a good guess. So listen, about this Dr. Witt . . . ”

  “I’m pretty sure he called your offices last December. I don’t know who he would have talked to.”

  “Probably me,” Bachman admitted, “but I really don’t remember. I’ll have my secretary look it up and get back to you, how’s that?”

  “That’d be good. Thanks.”

  “Sure. No problem.”

  “It’s the real you at last,” Hardy said to his friend Abe Glitsky, who stood in the doorway to his apartment wearing a clown costume—big floppy feet, white PanCake makeup, a cute little red nose. “Let me guess . . . ”

  Glitsky cut him off. “It’s Jacob’s birthday party.” He turned back into the apartment, Hardy tagging behind. Flo came up, bussed him on the cheek and asked if he wanted some cake or ice cream. There were about fifteen ten-year-olds in the cramped kitchen, none of them meditating.

  “Abe looks good.”

  Flo gave him a look. “You wait. You’ll do it too.”

  Hardy thought that she was probably right. He couldn’t, at this moment, though, imagine himself as a future reincarnation of Bozo the Clown, but he had to admit it was possible. “Is he going to be done soon?”

  “Ten minutes,” Flo said, “maybe a little more. He just does a little act.”

  “I’d love to see it.”

  She moved closer to him, a hand on his arm. “I think you’d cramp his style. You can wait in the boys’ room.”

  All three of the Glitsky boys had the same bedroom, and it wasn’t a big one. Jacob and Isaac shared the bunk bed, and OJ, now almost five, used a little daybed against the opposite wall. Hardy sat on it listening to the laughter from the kitchen as his friend the homicide inspector did his clown tricks. He took the opportunity to rest his head for just a second on the pillow.

  “I hate to wake you but my kid needs to go to sleep.”

  Hardy looked at his watch. He had crashed for nearly an hour. Glitsky was back in normal clothes, holding out a cup of hot coffee. Hardy took it, sitting up, rubbing a crick in his neck with his free hand. “I had a dream about you in a clown suit,” he said. “It was horrible.”

  Glitsky shook his head and turned around. Hardy followed him into the kitchen, sat down at the table with his coffee cup. Glitsky poured some boiling water into a cup and started fiddling with the chain at the end of his silver tea strainer. In the back rooms they could hear Flo finishing up with the boys, supervising the washing up, getting them into their pajamas, ready for the sack.

  “But enough small talk,” Hardy began. “What did you ever find out about the Romans?”

  Over by the stove Glitsky dipped the strainer up and down in his cup and watched the steam rise. “I know they were after the Greeks but beyond that it gets a little fuzzy.” He picked up his cup, holding the tea chain in his other hand, crossed to the table and sat. “Latin wasn’t my thing or I’d probably know more.”

  Hardy drank coffee. “Cecil Roman, father of Melissa Roman, deceased patient of Larry Witt. Mr. Roman accused Witt of performing an abortion and killing his daughter.”

  The tea was by now as dark as Hardy’s coffee and still Glitsky kept dipping the strainer. “Oh, those Romans. No, I haven’t found out anything. I probably would have told you if I had.” He finally took the strainer out and took a cautious sip. “You really going to need it?”

  “I’d like to know if Roman, or his wife for that matter, has an alibi.”

  Glitsky nodded. “The case falling apart?”

  Hardy told him about the events of the afternoon, the allegation about Lightner, how it would be helpful if they had at least one other person who might have had some good motive and opportunity to kill Dr. Witt.

  “It sounds like this guy Lightner kind of sticks up. He was sleeping with the lady and he could have—”

  “They both deny they were lovers.”

  Glitsky gave him the eye. “I’m sure.”

  Hardy shrugged. “It doesn’t really matter. The jury’s going to believe it.”

  “So there’s a motive for him.”

  “Except he was working that morning. At his office. With secretary in attendance. Terrell already checked it out.”

  Glitsky slurped some tea, his eyes out of focus somewhere behind Hardy. “I’m not sure I understand why I want to help you point the finger away from a murder suspect who looks to me like she’s guilty. You want to explain that part to me again? I’m a cop, remember? I’m on the other side.”

  “I could say to serve the ends of justice but I sense you’d gag or something.”

  “Or something.”

  “Okay, I won’t say that. How about we’re such good friends and I’d do the same thing for you?”

  “Nope. No good.”

  Hardy got up for more coffee. At the counter he turned back around. “I’ve got it—you might get the collar on the real killer.”

  “Except we think she’s already on trial.”

  “Well, what about if it isn’t her? Look, Abe, the Romans hated Larry Witt. All I’m asking you to do is find out if they were in Tahiti or someplace on December 28 so I can cross them off.”

  “That’s all, huh? Find out what somebody was doing on a certain day ten months ago? You saw them, didn’t you? Why didn’t you ask them?”

  “I think it was that the opportunity never came up.”

  “So I go find out, right? Piece of cake. Speaking of which, cut me a little of that, would you?”

  The remains of Jacob’s birthday cake, pretty well destroyed, were on the drain, and Hardy scooped some of it onto a paper plate and brought it back to the table. “See what a friend I am?”

  Glitsky rubbed a finger through the frosting, popped it into his mouth. “Absurd,” he said.

  Hardy shrugged. “But so much of life is.”

  Freeman did not have two bottles of wine at his French restaurant. Instead, after the first one, he decided he had to take another crack at Jennifer, get to the bottom of this affair issue.

  But he didn’t make it upstairs to the jail. Ken Lightner was coming down the wide steps at the front of the Hall of Justice when Freeman arrived. Not given to hesitation in any event, Freeman jumped out of the cab, bumping his head on the door and calling, “Dr. Lightner, wait a minute, would you?”

  Fumbling for some money, Freeman threw a mixed handful of coins and bills through the cab’s front window. Lightner had come down the steps. “Mr. Freeman, I’m sorry, but it’s late and I’m very tired. Whatever this is, it’s going to have to wait.”

  “It’s not going to have to do anything of the kind, sir. I need the truth from you and I need it now.”

  Lightner gestured back toward the building. “I told the truth in there this afternoon.”

  “And tomorrow, if I choose, I get to cross-examine you about that, about what you said. Would you rather we get to it then? What have you been doing in there? Visiting my client?”

  “Visiting my patient, Mr. Freeman. My patient.”

  “And your lover?”

  This time Lightner’s response was measured. “I’ve denied that under oath. You’re going to have to accept that.”

  “I don’t accept it,” Freeman said. “I don’t believe it, and that makes you my best suspect.”

  “Me? Are you joking?”

  Freeman jabbed a finger. “Yeah, you. No, I’m not joking. If you were having an affair with Jennifer, you’ve got at least as good a motive as she does to have killed her husband.” Of course he didn’t really believe that, but he had to try. “So I’ll look forward to talking to you tomorrow on the stand, and if you think you’re tired now . . . ” Freeman headed for the wide doorway.

  “Now just a minute . . .”

  Freeman turned. “It’s going to take a sight more than a minute, Doctor. You got the time or not? If not, I’ve got better things to do.”

  They were ten feet apart, Freeman fla
t on his feet like a fighter. Lightner scratched at his beard. “All right,” he said. “But not here.”

  “I know a place,” Freeman said, already moving, leading the way across Bryant, through the doors and down the steps to the underground labyrinth leading to Lou the Greek’s. This time of night the place was nearly empty. Lou was wiping up, the TV was dark. Two regulars quietly nursed beers and shots at the bar and a couple were wrapped around each other in a side booth. Freeman took Lightner to the back, to another booth. When Lou started toward them, Freeman waved him away.

  “My only concern, Mr. Freeman, is Jennifer.” It hadn’t been warm outside and Lou’s wasn’t any better, but Lightner had a sheen of sweat on his brow that he seemed unaware of.

  “Well, good, Doctor, that gets us off on the right foot.” Freeman knocked on the table, loud, calling out, “On second thought, Lou, bring us two cold ones, would you?” Back to Dr. Lightner, he crossed his hands in front of him. “I’m listening, Doctor.”

  Again the beard got scratched. “It’s complicated. She thinks she’s in love. With me. It’s a common phenomenon, transference, reinforced by the situation she had at home.”

  “Transference? Where you sleep with her?”

  Lightner shook his head. “Look, Mr. Freeman, I am not a therapist who sleeps with his patient. I don’t really care if you believe that or not. That would really damage her. She doesn’t need that, she didn’t need that, even if she thinks she did . . . ”

  “And she thought she did?”

  Lou came back with the beers, put them on the table, disappeared. Freeman put a hand around one and drew it to him, drinking, listening. Lightner sat there, reflecting, ignoring his bottle. “It was not an easy week,” he said. “Down there, I mean. In Costa Rica . . . ”

  Freeman took another swig of beer. “So you didn’t sleep with her. But why didn’t you tell us about how she felt?”

  Lightner was shaking his head side to side, as though lecturing a child. “That would have been rather stupid.”

  “Why?”

  “Because it would announce to the jury that Jennifer wasn’t in love with her husband, that she wanted out of the marriage. You think that would help her, help your case?”

  Freeman shrugged. “It’s out now, Doctor. How about that?”

  “It came out. Nobody volunteered it. There’s a difference.” Lightner’s voice was down to a near-whisper. “Listen, please, do you think if I thought it would help Jennifer that I wouldn’t have lied? I’m human, I’m even at least a little in love with her.” He shook his head. “It happens both ways in therapy. A professional recognizes it and controls it.” He seemed to notice the beer for the first time and pulled it toward him. “Don’t you see? She realizes that, it gives her the freedom to feel as she does and not be afraid I will take advantage of it. It’s in part why she trusts me.”

  “But she stayed with you.”

  “She was scared, Mr. Freeman. She wanted to stay with me. I decided to allow it. It may have been bad judgment. As I said, I’m human too. Even though I am a shrink.” He half-smiled.

  Now Lightner took a drink. “That’s all of it, Mr. Freeman, and you can believe me or not. I could not turn her out. We draw our own lines. I let her stay in the room with me. Platonically.”

  Freeman crossed his hands in front of him again. He sighed. It was not impossible. “I still say you could have told me this earlier.”

  “I didn’t want it to come out at all—don’t you understand that? Nothing about it. I was afraid it would hurt Jennifer at this trial. It would seem to say that she had a strong motive—in addition to the money, or whatever else they’re saying—to get rid of her husband. Wouldn’t it? It would cast her in the role of a cheating wife.”

  “And now it has.”

  Finally, Lightner seemed to lose his patience. He slapped at the table. “Well, that was not me. I did not make that happen. And if you want to bring it up again tomorrow and hammer at me, if you think you’ll be doing Jennifer any good, then so be it. I’ll repeat what I’ve told you here and you can watch while the jury takes in the fact that Jennifer had a strong emotional reason to kill her husband, maybe even her child, maybe even on purpose . . . so that she could run away and start a new life with her shrink.” He grimaced. “If you really think that’s going to help her . . . well, you can’t possibly. The best thing you can do for Jennifer, Mr. Freeman, is forget about her and me.”

  Sipping his beer, Freeman nodded. “It also lets you off.”

  Lightner shook his head again, as though regretting what he was about to say. “Mr. Freeman,” he said, “I was in my office that morning and I can establish that. I’m afraid the jury is going to focus on Jennifer, on her supposed motive, or motives, on the fact that she didn’t love her husband anymore, that she wanted out of a terrible marriage.” Lightner drank off half his beer. “My God,” he said, “you’re the lawyer. Do you think I wanted this to happen? Do I have to draw you a picture?”

  His eyes sad, dispirited, Freeman spun his empty bottle between his hands. “You just did,” he said.

  39

  “Good morning. I’m not going to take up too much time with my defense statement this morning. You probably feel you’ve been here long enough. I don’t want to bore you on the one hand or insult your intelligence on the other.

  “But I do think it will be useful to recap what’s happened here in this trial, so far as the evidence is concerned, because evidence is what trials are really all about. Does the evidence prove beyond a reasonable doubt that Jennifer Witt killed her husband and son? Well, looking at the evidence, which we’ve now seen every bit of, the answer, ladies and gentlemen, is no.

  “Let me repeat that: The evidence we’ve seen so far does not prove that Jennifer Witt killed her husband and her son, and that’s what it has to do.”

  Freeman, voice low, in his least aggressive tone, spoke in place, gesturing occasionally with his hands, but seemingly content to let his words do their work. He stood before the jury box, directly in front of the table shared by Hardy and Jennifer. He did not so much as glance at Judge Villars, or turn to Powell and Morehouse at the prosecution table. This was his statement to the jury and he was going to play to them.

  “The evidence has to prove that Jennifer Witt has done these terrible deeds. It must allow for no other reasonable explanation. It is not enough to say, ‘Well, maybe she could have been there and done this.’ You must be absolutely convinced. There must be no doubt.”

  “Your Honor.” Dean Powell appeared saddened by the need to interrupt. He conveyed how much he just hated to break Mr. Freeman’s rhythm, but alas, he really had no choice. He spoke with considerable control. “This is argument, not an opening statement.”

  Surprisingly, Villars overruled Powell. Hardy thought it was the first time in the trial that he’d seen Villars blow a call on the law. Freeman was out of bounds—this was clearly argument. Evidently it was an argument that appealed to the judge.

  But Freeman had no cause to gloat. He knew it, and picked right up. “And what do we, the defense, have to prove? Do we have to prove that Jennifer Witt was not at her house? That she did not use the gun? That she did not have a lover? That, perhaps, she did not know about her husband’s insurance policy and the double-indemnity claim? The answer is that we do not have to prove a thing. The burden of proof is on the prosecution and it never goes away from the prosecution. Mr. Powell here”—and Freeman turned slightly—“his job is to prove Jennifer Witt did these things, and you know what? He just has not done it.”

  Hardy had to admire Freeman. The man was a fighter. Freeman held up a finger. “One—no one—ever—has positively put Jennifer inside the house when the shots were fired. This is a fundamental flaw that, by itself, creates reasonable doubt.

  “Two.” Another finger. “And this is also crucial. The prosecution has offered no motive, no theory, no reasonable hypothesis at all for the shooting of young Matthew Witt. It is simply asking you to b
elieve that Jennifer Witt, for some unknown reason, shot and killed her only child. There has been no effort to prove that she did, or why.”

  Jennifer still took any mention of Matt heavily. Her head went down for an instant and she sucked in a breath, swallowing hard. She reached for her water and drank.

  “Three. The first witness to even put Mrs. Witt near the scene at the time of the shooting—that was Mrs. Barbieto, you’ll remember—was not even close to being clear on the amount of time that had elapsed between hearing Jennifer next door and the shots. It might have been fifteen minutes. In fact, it quite possibly was.

  “Four, Mr. Alvarez says he saw Mrs. Witt running down the street away from him within a minute of the shots. One minute. Let’s recall the testimony of Mr. Alvarez on this famous one minute. He said that he walked directly from his wife’s bedside to the window at the front of the hallway overlooking Olympia Way, a distance of perhaps twenty feet. And there was Jennifer Witt, already—in that short minute or less—outside the gate to her house, looking back at it.”

  This, Hardy thought, was clear by now. And it was a crucial point. Even if she had run, Jennifer could not have made it from her bedroom—where the killings had occurred—down the stairs, across the living room, out the door, down the walkway and out the gate, closing it and turning around in the amount of time it took Alvarez to walk twenty feet.

  Freeman paused briefly to let it sink in. More quietly now, confident in his facts. “Let’s go to Mr. Alvarez’s identification of Jennifer Witt. Now, I’m not saying he didn’t positively identify Mrs. Witt—he did that. I’ll ask you, though, to consider how he could be so positive when he admits that he never saw her face. That’s a hell of a trick.”

  Villars frowned at the mild profanity but—again surprisingly—let Freeman continue uninterrupted.

  “Next, since it made such an impression on the prosecution when this came up, let’s take a minute to talk about Mrs. Witt’s alleged intimate relationship with her psychiatrist. Dr. Lightner, under oath, has denied it. Now you may be skeptical, but remember that Inspector Terrell’s opinion that they were having an affair was stricken as speculation. Which means that, as a matter of law, this alleged relationship has not at all been proved. Has anything proved that Mrs. Witt and her psychiatrist were intimate at any time? The answer, again, is no.” He paused, lowering his voice. “No. Nothing.” And after the interview with Lightner, Freeman could assert this with conviction.