The 13th Juror

by John Lescroart

  Freeman walked to the defense table and took a sip of water. Raising his eyes for a moment, he briefly took in the gallery, seeing if he still held them, as well. Satisfied, or nodding as if he was, he turned back to the jury box, raising a finger again.

  “Nevertheless, although we do not have to prove anything, we will demonstrate to you how easily Mr. Alvarez could have been—within the meaning of reasonable doubt—how he could have been, and indeed was, mistaken in his identification of Mrs. Witt as the woman who went running off after the shots. Further, and finally, we will show you evidence—powerful, compelling, incontrovertible evidence—that Jennifer Witt could not have killed Larry and Matthew—because in fact she was not in her house when the shots were fired. She could not have been there. Just as this court found that there was insufficient evidence to prove that Jennifer Witt had killed her first husband, Ned Hollis, there is none to prove that she killed her second, or, for God’s sake, her child.” He pointed a finger for the last time at Jennifer. “There sits a woman who truly has been wrongly accused. A victim, not a criminal. Mrs. Witt is more than legally just not guilty—she is in truth, and in fact, an innocent woman.”

  In his bleaker moments, Hardy wondered if it was something in the San Francisco air. He had often heard that there was supposed to be something—some mold or spore or other magical substance—in the local salttinged windy ether that was responsible for some of the wonderful gastronomic delights of the city—sourdough bread and Italian dry salami, for example. But he found himself wondering if there was a less benign side to it, some as yet undefined parasite or chemical or meteorological phenomenon that produced hope at the outset of an endeavor only to dash it before it could be realized.

  Witness the 1993 Giants. Had a team ever come so far only to crash and burn just enough to fall short by one game? You could talk all you wanted about their sore pitching arms and lack of basic team character, but it was damn tempting to blame the air. Here it was October, and Hardy wasn’t watching San Francisco in the playoffs. And back when the Giants had been ten games ahead at the All-Star break, he’d also entertained the belief that Jennifer would be acquitted—now he worried that that was another dashed hope, like the pennant. For in spite of David Freeman’s antics and experience, in spite of his “other dudes,” in spite of the victory in the Ned Hollis portion of the trial, even in spite of Freeman’s really brilliant cross-examinations of the prosecution’s major eyewitnesses, Florence Barbieto and Anthony Alvarez, he believed now that they were probably losing.

  With the Lightner business being introduced, despite David’s efforts to neutralize it, the wind had seemed to go out of the defense’s sails. Of course, Freeman would never admit defeat, or the likelihood of it, and he was doing his best to keep the ship sailing, but the ballast—the weight of all of Jennifer’s apparent lies—now seemed to be just too much. There was a scrambling feel to the defense now, a sense that all the arguments and pyrotechnics weren’t leading to the truth, weren’t in the service of justice, despite Freeman’s arguments.

  The jury wasn’t going to vote your way if you didn’t convince them there was an alternative truth that perhaps they just weren’t seeing. For a while, even he had believed in the possibility of an alternate truth that might be convincing. He thought the jury would, too, and what was reasonable doubt if it wasn’t that?

  Now—maybe it was, after all, something in the air—but like the Giants and their sore arms, Freeman had started well but with the failure to come up with at least one convincing other dude, and the bombshell about Lightner and Jennifer, well, Hardy feared the season could be over.

  On Monday Jennifer was escorted into the courtroom by David Freeman on one side and the bailiff on the other. As opposed to the fashionable clothes she had been wearing throughout, she wore a maroon runner’s outfit and some high-tech tennis shoes. Her hair was tied back in a ponytail, and Hardy thought she looked about seventeen years old.

  When Villars ascended to the bench she immediately noticed the change and frowned. “Mr. Freeman, would you approach?”

  Hardy watched his partner chatting with the judge, nodding, gesturing. Voices didn’t get raised, and in a minute Freeman was back at the defense table, smiling. “What could she do?” he said.

  Freeman called Lisa Jennings, the other jogger, who was dressed identically to Jennifer. The gallery caught it, and Villars rapped her gavel a couple of times, calling for order.

  Lisa did not look exactly like the defendant, but in their matching outfits, with their hair cut the same—Freeman had paid Lisa to cut hers—there was no denying the similarity. Lisa was a little thinner and an inch or two taller, but they were both medium-boned, attractive blond women in their twenties.

  Hardy thought Freeman shouldn’t have Lisa say a word. He should just call Alvarez and see what happened. But Freeman could no more do that than he could whistle with a mouthful of thumbtacks.

  Though Hardy had warned Freeman—often and vigorously—that Lisa’s testimony could be chopped up and masticated by Powell, still the old dog wanted to introduce it to the jury. “It’ll ring true,” he had told Hardy. “You wait.”

  And, in fact, he was right. Lisa’s testimony itself—stopping at the house, hearing the shots, running off after a minute or so—all of it did ring true.

  The problem, as Hardy had argued again and again, was that even if it had happened, they had no way to prove it had happened on December 28.

  And Powell—no surprise—did not seem inclined to let that omission slide.

  “Ms. Jennings, how often do you run down Olympia Way in the course of, say, a month?”

  “Several days a week, I’d say.” She may have been nasty to Hardy when he had first tried to corral her, but Lisa came across as a cooperative, even friendly person. Now that she was here, committed, she wanted to please. “Maybe . . . fifteen, twenty times a month.”

  “And you’ve been doing that for how long?”

  “A couple of years, I’d say. Almost three.”

  “So you’ve run by Mrs. Witt’s house what . . . about two hundred times? Something like that?”

  “Yes.”

  “And do you keep a log of where you’ve gone on which days, which route you’ve run?”

  Lisa looked at Freeman, then back at Powell. “No, I just run.”

  “So, you don’t know for a fact when you heard these noises on Olympia Way that you’ve just testified about, do you?”

  “Well, I only heard them once.”

  “Two noises, like gunshots?”

  “Yes.”

  Powell nodded, taking his time. He looked over at the jury, his face showing a question mark. “I see. And hearing these gunshots, did you report them to the police?”

  “No.” Lisa rolled her shoulders, moving in the seat.

  “Why not?”

  “I don’t know. I guess I didn’t think they were gunshots.”

  Wide-eyed wonder broke over Powell. “Oh? Why didn’t you think they were?”

  “I’m not sure. I guess at the time I thought they were backfires or something.”

  “Could they have been backfires?”

  Freeman, trying to save her, stood up and objected, but before he could even give grounds, Powell withdrew the question. But came right back. “You’ve mentioned the phrase ‘at the time.’ This was on December 28, last year, is that right?”

  Again, Lisa looked at Freeman. “I didn’t say that.”

  “No, you didn’t. That’s why I ask.” Powell smiled, a gentleman, only trying to get to the truth of the matter. “Take your time.”

  “I don’t really know what day it was.”

  The wonder appeared again. “But surely it was last winter.”

  “I think it was, I know it was several months ago.”

  “Might it have been longer?”

  “Your Honor! Counsel is badgering this witness.” Freeman was standing, but he was going to lose and he knew it. He did.

  “I don’t t
hink so,” Villars said. “Overruled.”

  “Might it have been longer ago?” Powell asked again, mildly.

  Suddenly Lisa’s voice rose to a near-shout. “I don’t know when it was!” Shocked by what she’d done, she stared at Powell, then at the jury. Finally she apologized to the judge and repeated, in a near-whisper, “I don’t know when it was.”

  “Thank you, Ms. Jennings. I have no further questions.”

  It was getting to the end.

  Freeman had been intending to call Alvarez and get him to point at the two women—Lisa and Jennifer—in the back of the courtroom, at least demonstrate to the jury that a mistake in identifying one or the other would have been possible. In a sense, having Lisa simply appear accomplished the same result, although in Hardy’s opinion it was nowhere near the victory he had been hoping for when he waited those mornings out in his car on the off-chance that Lisa would go jogging by.

  Now, with Powell’s undoing of the mistaken-identity argument, Alvarez would not be called. They were down to the ATM, their last best hope.

  No one was exactly asleep, but it was a Monday afternoon, and even Hardy, who had memorized the numbers and carefully honed the theory to its present form, had to admit that this was the kind of testimony that reminded him of his after-lunch high school physics class, the one he had largely slept through.

  Freeman was up with Isabel Reed, the young black woman who had been so taken with Abe Glitsky when he and Hardy had gone to visit her at the Bank of America half a year or more ago. In the course of a couple of interviews, the matter of the three-minute difference in times had come up and Freeman had brought it home strongly to Ms. Reed so that, on her own, without a direct question from him, she should not bring up the discrepancy. He wasn’t sure, but it was possible it could get her in trouble.

  This made Hardy uncomfortable—but again he got overridden. Freeman contended that if the prosecution knew about it and wanted to talk about it, they’d deal with it then, but they wouldn’t feed them the extra three minutes. They might need them.

  When he had Ms. Reed on the stand, Freeman had introduced Jennifer’s own ATM receipt and a copy of the Bank of America’s confirming report. Solid physical evidence that at 9:43, Bank of America time, Jennifer Witt had been standing at the automated teller machine, getting some spending money.

  They were looking at a blown-up poster that had been set up next to the witness chair. It was a portion of a map of San Francisco showing the route from Olympia Way down Clarendon into the Haight-Ashbury district—the route Jennifer told Hardy she had taken that morning. On Friday, one of Freeman’s witnesses had been Officer Gage again—he had been induced to talk about the distance from the Witt home to the bank—the shortest route along the streets—a long semicircle around the UCSF Medical Center, now outlined in red for the jury’s benefit.

  It really had nothing to do with Ms. Reed’s direct testimony, but Freeman thought he saw a way to get in what he wanted, and he wasn’t going to let a little thing like that bother him. His face assumed its most perplexed expression. “Ms. Reed, let’s look at this map for a moment. You may have heard Officer Gage the other day testify that your branch office is 1.7 miles from Mrs. Witt’s home.”

  “Yes.”

  Freeman kept frowning, trying to figure this out. “He said 1.7 miles. Does that seem right to you?”

  “Your Honor . . . ” Powell rose. “We’ll stipulate that the red line represents 1.7 miles.”

  “Stick to it, Mr. Freeman,” Villars said somewhat ambiguously. “What’s your point?”

  Now, the door open, Freeman smiled. “I’m glad to explain, Your Honor.” He turned back to Ms. Reed. “You’ve said that Mrs. Witt accessed her account at precisely 9:43?”

  “That’s right.”

  “Well, we’ve heard a witness—Mrs. Barbieto—say that Mrs. Witt was home, that she heard her, a couple of minutes before she called the police at 9:40. I’m just wondering if you are sure about your time.”

  “It was 9:43,” Ms. Reed said. She was well-dressed, self-assured, confident. A good, believable witness with a document—the computer printout showing the exact time that Jennifer had accessed her account—to back her up. It was 9:43.

  “In other words, Ms. Reed, just to touch all the bases, and, Your Honor”—Freeman smiled up at the bench—“this is the point I’ve been laboring to make. We’ve got a picture of Jennifer Witt at her house at 9:38, which is, in Mrs. Barbieto’s words, a couple of minutes before she called 911 at 9:40, and we are expected to believe that five minutes later, she was at her ATM machine, having covered a distance of 1.7 miles?”

  This played very well. The jurors were struck by it as Hardy had hoped they would be. Behind him, he heard a satisfying, low buzz in the courtroom. Even Villars, doing the math in her head, seemed to him to be impressed. All might not be lost, after all.

  The prosecution could not have it both ways—either Jennifer left before the shots, in which case she obviously could not have done the killings, or she had left later, in which case she couldn’t have made it to the bank. But she had made it to the bank. So she hadn’t killed anybody.

  “In fact,” Freeman continued, “even if it had taken Mrs. Barbieto ten minutes to call 911 after the shots, that moves Jennifer’s time back to 9:30. But the shots weren’t at 9:30, either, because the Federal Express driver, Fred Rivera, was there until 9:31, at least.”

  Freeman was rolling, in his enthusiasm making a closing argument, and for some reason Dean Powell was letting him do it. Hardy looked over at the DA’s table and his stomach tightened. The man was smiling.

  The judge wasn’t stopping Freeman either. He just rolled on and on, paying no attention now to the witness, speaking directly to the jury. “Let’s even, for the sake of argument, say that Jennifer was home, upstairs, when Fred Rivera was there. Let’s say Larry and Matt were shot within a minute of that, at 9:32. If she left immediately, or within a minute as Anthony Alvarez has said she did, then Jennifer would have had to cover 1.7 miles in ten minutes. This is a pace of better than a six-minute mile, which is almost a dead sprint for a real athlete. Jennifer Witt just could not have done it.”

  Villars, caught for a moment in the rhetoric, came back to herself. She sent a hard look at Powell, no doubt, Hardy thought, wondering why Powell was letting the defense get away with that without objecting. But the prosecutor didn’t react to her gaze. Freeman was walking to his seat, and Powell was casually rising, straightening his jacket, combing his hair with his fingers, a man on his way to a party.

  “Ms. Reed,” Powell began, “do you know if the clock on your ATM, your automatic teller, is accurate?”

  Hardy leaned across Jennifer. “He knows,” he whispered to Freeman. “How could he know?”

  Freeman shook his head, tightening his mouth. Jennifer said, “What?” and he patted her hand.

  Ms. Reed gave it a valiant try. “I’m not sure I understand the question. Accurate? You mean does it keep time accurately? I’d say yes.”

  “That’s not exactly what I meant.” Powell smiled at her, then turned to the jury. “We’ve just heard so much about time in this trial—the Federal Express computer, the 911 dispatcher, your own ATM machine—that I wonder if you know if these are all connected by some big computer, or somesuch.”

  Ms. Reed, no fool, knew where this was going, but there wasn’t anything she could do about it. If she was going to get in trouble, then she was. She definitely wasn’t going to lie under oath.

  It came out.

  Powell, of course, feigned shock. “Do you mean to tell me that the defense knew about this three-minute gap and we listened to all this hoopla from Mr. Freeman and he never saw fit to mention it?”

  Villars, Hardy thought, was almost smiling, and that was chilling. In her eyes, it seemed, Powell had just vindicated himself.

  “Yes.”

  “Why didn’t you bring it up? Didn’t it seem important?”

  “Well, it did, but Mr. Fr
eeman had said I might get in trouble.”

  “Mr. Freeman said you might get in trouble?”

  “Yes.”

  “How would you get in trouble?”

  “I don’t know. With the police maybe. That’s what Mr. Freeman said, anyway.”

  Hardy covered his eyes with his hands for a minute. It occurred to him that it didn’t look good to do that, but in lieu of a hole to crawl in, it seemed a reasonable second choice.

  Powell pushed on. “So with the three-minute difference, we’ve got a thirteen-minute run, don’t we? Or a pace that makes a seven-and-a-half-minute mile, which is fast but nowhere near requiring a trained athlete.”

  “I don’t know . . . ” Ms. Reed was near tears, either from fear or from anger at being placed in this position.

  “Objection.”

  But Villars just pointed her gavel. “Don’t you dare, Mr. Freeman,” she said.

  Powell waited, naturally pleased with the ruling, then continued: “Since the defense has brought this poster up here, let’s use it for a minute, shall we? You’ve testified about this famous 1.7 miles—is that right?”

  “Yes.”

  “But look here—this red line skirts the property of the UCSF Medical Center. Are you familiar with these grounds?”

  “Yes, they’re just up the street. I eat lunch there sometimes.”

  “You mean, they’re not closed off to the public? Anybody can walk through them?”

  “I do all the time.”

  “Ms. Reed, would you mind taking the red marker we’ve been using and draw a line through the grounds of the medical center so that the jury can see it.”