The 13th Juror dh-4

by John Lescroart

  *****

  Marko Mellon had not begun watching the news report on Jennifer Witt during the Freeman section, as Hardy and company had. He had watched from the start, when they showed her picture – the one the stations and newspapers had used before she had been charged with the murders – smiling, vivacious.

  Marko, a twenty-five-year-old Syrian exchange student at San Francisco State who had been following the trial in a fairly dedicated fashion up to this point, was familiar with, Hardy thought, a surprising amount of facts about the case, so much so that it took police inspectors – one of whom was Walter Terrell – nearly five hours to determine he could not possibly have killed Larry Witt.

  His motive for killing Larry, he said, was that he loved Jennifer. As it turned out, his motive for the confession was that he had decided he loved Jennifer from her picture. It was a spiritual connection he was sure they had, and if he confessed she would of course want to meet him, after which they would fall in love, get married, have more babies to make up for Matt. It was a no-lose plan, because eventually they would find out he, Marko, hadn't really done it, and then he'd be free and they could live happily ever after together.

  "I don't think he thought the whole thing through." Hardy was talking to Freeman. The storm had passed and there were pink clouds in an early morning gray sky over the Oakland Hills across the Bay. They were by the door to Hardy's car, standing in a deserted Bryant Street outside the Hall of Justice after the decision had been reached that they weren't going to be charging Marko with Larry Witt's murder.

  "It staggers me that it took them five hours to come to it," Freeman said. "The boy's got the IQ of a turnip. Of course, then again, some of the inspectors…"

  "He did know a lot of details, David. They had to let him cross himself up."

  "Rats in mazes know details. That doesn't make them smart. They should have just asked him when his visa runs out."

  "Why would they ask them that?"

  "You check. Dollars to donuts his visa runs out in the next month or so. He figured he'd get arrested, get to stay longer over here."

  "In jail? On a murder charge?"

  Freeman shrugged. "You ever been to Syria, Diz?"

  Hardy let it go. Freeman might be right. "I saw you tonight on the tube, by the way. I don't think Dean's going to be too pleased."

  Freeman waved it off. "It's good press. I'm doing him a favor."

  There was a silence between them, a residual tension that banter wasn't going to camouflage.

  Hardy pulled open the door to his car and, in the predawn light, asked if he could drop Freeman at his apartment. He'd taken a cab down. The old attorney said no, he'd walk.

  "This time of day through this neighborhood? Come on, David, get in."

  Freeman slammed his hand on the roof of the car. "Take off, Diz, I'll see you tomorrow."

  "David…"

  Freeman spread his hands theatrically. "We've been working together long enough, you ought to know by now. I'm bullet-proof."

  *****

  At sunrise Hardy was still in his car, waiting on Olympia Way as though he were at a stakeout. If the jogger came by again he was going to get a few words with her if he had to sprint alongside her for six blocks breathing Mace.

  She did not appear.

  34

  Freeman was wrong. Powell did not take it as a favor.

  They were in Judge Villars' chambers again. It was 9:40 on Monday morning and the jury was in the courtroom, waiting. Adrienne, the court reporter, was perched with her portable equipment next to one of the easy chairs, but she was the only one sitting. Her presence was necessary, as no meeting was ever off the record.

  Freeman, Hardy, Powell, his young assistant, Justin Morehouse, and Villars were taking up most of the rest of the space in the room. Or maybe it just felt that way. Everyone stood in a knot, too close, an invisible bubble surrounding them, the pressure building within it.

  "I've never been more serious, Your Honor." Freeman looked especially wan in a ten-year-old brown suit. "I've given this a lot of thought over the weekend, since your generous granting of my 1118-"

  "There was nothing generous about that. Don't put a personal spin on this…"

  "The fact remains. I'm convinced this would not be a capital trial if Dean here weren't running for AG."

  "Your Honor." Powell wore his substantial self-control on his sleeve, but it was wearing thin. "Mr. Freeman knows full well that we've still got two sets of specials on both remaining counts. This is a death-penalty case."

  "It's politically tainted and you know it, Dean."

  "There's nothing political about it."

  Freeman turned to Villars. "Let him prove that, Your Honor, if he can. Continue this trial until after the election. See how hot our dedicated prosecutor is to fry Jennifer Witt then."

  "Your Honor, I resent defense counsel's implication-"

  "I'm not implying anything, Your Honor. We've got grounds to appeal right now, and I think we're skating mighty close to another due process violation. I might have to ask for a mistrial after all."

  Freeman, though he said the magic word, did not win a hundred dollars. Instead, Villars raised herself up and pointed a finger at him. "On Friday you said you didn't want a mistrial, Mr. Freeman. I am not going to let you take opposite sides of the same issue."

  Powell, his temper beginning to show, cracked his knuckles and ran his fingers through his hair. "If he wanted to calendar the case after the election, he could have requested it anytime. Now we have a jury impaneled, we have witnesses who've rearranged their schedules to be here. To continue the trial at this point-"

  Villars moved a step toward them both, the color high on her normally gray cheeks. She spoke quietly but her voice had the crack of authority. "All right, now, both of you, listen up. Unless Mr. Freeman requests it right now we're not having a mistrial, we're not having a continuance. I'm going to give some instructions to the jury this morning and then we're going to proceed in an orderly fashion until we get to a verdict." She reached to button her robe, then stopped. "And one more thing – I don't want to see this case on television, or read about it in the newspapers over the next few weeks. Consider this a gag order. My clerk will have a written order by the recess. I trust we're clear on this."

  *****

  "Ladies and gentlemen."

  The judge was still angry – furious at Powell for what she considered the sloppiness of the first half of the case, and at Freeman for at least a half dozen reasons – blurring the mistrial issue, threatening to appeal, attacking Powell personally, going public with his accusations, dressing like a bag man in her courtroom. Hardy wondered if her anger was as obvious to the jury and to the standing-room crowd in the gallery, who had no doubt showed up in response to Freeman's appearance on television followed by the front-page story in yesterday's Chronicle.

  Jennifer Witt had become big news again.

  Though Villars had more reasons to want to flay Freeman, she appeared to be equally hostile to both sides, and this – Freeman felt – would ultimately help him. Of course, Freeman was of the opinion, Hardy reflected, that a mass murder in the courtroom would ultimately help the defense. His credo was that any disturbance in the steady accretion of incriminating evidence helped the defense. It was why he acted so disruptively.

  But in spite of the huge crowd, Villars might as well have been alone with the twelve jurors in a small room. She did not so much as glance in the direction of the gallery, of the attorneys' tables. In a conversational, almost intimate tone, she was giving instructions intended to keep her trial from becoming a reversal – the nightmare of every judge and doubtless the root of her most immediate anger.

  "I won't try to deny that this trial has taken an irregular turn. It is highly unusual to dismiss one charge in the middle of the People's case and I won't insult you by pretending it is not. Some of you may feel a little strange that we are going on at all, and I want to address that issue now.

&
nbsp; "Mrs. Witt had been charged with three separate counts of murder. On Friday, you will recall, I ruled that there was to sufficient evidence that Jennifer Witt killed her first husband, Ned Hollis."

  "However, I want you to understand that this should not in any way prejudice your feelings about the People's case on the remaining two charges on the one hand, or Mrs. Witt's defense on the other."

  She took a sip of water and cast another withering gaze at counsel – on both sides of the courtroom.

  "That said, let us now put Ned Hollis behind us. He has no integral connection to the remaining charges filed against Mrs. Witt. If any of you feel that you cannot in good conscience accept this instruction, please raise your hand now and I will excuse you form the jury."

  No hands went up. Hardy would have preferred to see one or two because he knew, in fact, that this was an instruction that would be difficult if not impossible to internalize. Now all twelve jurors were sitting with the personal knowledge that Jennifer's first husband had died, and afterward she had collected a lot of money. No hands meant that it was not going to be acknowledged in deliberation over the verdict – but it was going to be there, a snake in the weeds.

  Villars nodded. "Now, the remaining two counts still include multiple murder and murder for profit, and those are among the special circumstances defined in California for which the State can ask the death penalty. The deaths of Larry Witt and Matthew Witt should be your only concerns during the remainder of this trial. The court appreciates your patience in sitting through this exercise and assures you that we will not have a repetition of it during the coming days or weeks."

  Villars took a final drink from her glass, then abruptly turned to face the courtroom. "I trust, Mr. Powell, that you are ready with your next witness."

  "I am, Your Honor."

  "All right, then, let's get this show on the road."

  *****

  Not only was Dean Powell unhappy and angry, the confrontation with Freeman in Villars' chambers seemed to have galvanized him. Now he didn't just want to win for another notch in his belt or a leg up on his campaign. Freeman, always angling for an edge, had raised the stakes and now – for Powell – it had become personal. He was not just going to win by getting the jury to convict Jennifer Witt. He was also going to whip David Freeman.

  Hardy flipped open his binder and found the tab for the Federal Express driver. He pushed it over in front of Jennifer so that Freeman could review it, too, but Freeman either did not need it – could it be he had the whole file memorized? – or was he reluctant to show that he did.

  Mr. Fred Rivera, the Lou Christie fan – Hardy had had "The Gypsy Cried" going through the brainpan for weeks, it was driving him crazy – took the stand, slightly ill-at-ease to be the first witness but clearly pleased to be part of all this excitement, plus getting paid to take a day off. He wore his Federal Express uniform and sat forward in the witness chair, wanting to take it all in.

  "Mr. Rivera." Powell stood on the balls of his feet, rocking forward and back, fifteen feet or so in front of the witness, in the center of the courtroom. "On the morning of December 28 of last year, the Monday after Christmas, did you deliver a Federal Express package to 128 Olympia Way?"

  "Yes, sir, I did."

  So it began, Powell walking Rivera through the delivery at precisely 9:30 a.m., when Larry Witt and Matt were still alive. Fred identified a picture of Larry. It was stamped as an exhibit, as was the Federal Express invoice containing Larry's signature for the package. Nailing the time down, Powell introduced the computer printout showing that Fred had punched in his verified delivery at

  9:31.

  Powell started his next line of questioning: Rivera had seen no one walking up or down Olympia Way that morning. Then without changing his rhythm, the prosecutor departed from what Freeman and Hardy had predicted would be the script. "Mr. Rivera, you had a talk with Inspector Terrell about the events of that morning and you described Mr. Witt's behavior, did you not?"

  "You mean I said he was pretty uptight, like that?"

  Freeman raised his index finger and objected that this was speculation and called for a conclusion. Villars sustained him. Powell rephrased it. "Mr. Rivera, what did Mr. Witt do when he opened the door?"

  "Well, he only opened it a third, maybe a half way. I gave him the package and then tried to give him the clipboard so he could sign for it, but he was holding the package, no place to put it down. It seemed to make him mad."

  Freeman, wondering where all this was going, raised a finger again. "Your Honor? Same objection."

  Villars leaned over to the witness. "Mr. Rivera," she said gently, "just say what you saw him do, not how you think he felt about it."

  Rivera's composure was slipping. Throughout all of his earlier conversations with lawyers and policemen, nobody had made him respond in this way before. Welcome to jury trials, Hardy thought.

  "What did Mr. Witt do then?" Powell was suddenly his good buddy, helping him, drawing him out.

  "Well, he turned half-around to give the package to the boy."

  "Did you see the boy?"

  "No, I didn not see him, not then. He was behind the door."

  "Then how do you know it was the boy?"

  "I saw him go running off to show the package to his mother."

  At the defense table, Freeman was flipping pages on Rivera's interviews. "You ever hear this before?" he whispered to Hardy and then, without waiting for an answer, stood. "Your Honor, I object. The witness can't possibly know the boy's intentions going off with the package."

  Freeman appeared agitated and he had reason to be. If the prosecution could show that Jennifer had been home at 9:30, and until now nothing in the record had indicated that they could, it would be a significant loss.

  Villars all but rolled her eyes. "I'm sure Mr. Powell will rephrase."

  Powell, still not skipping a beat, smiled at Rivera and said, "Dr. Witt handed the package to the boy behind the door. Did the boy then say anything?"

  "He said, 'I'm going to show this to Mom.'"

  Powell turned to Freeman, stopping to make sure the jury understood what Rivera had said. "Your witness."

  It was a classic example, Hardy thought, of why trials were both so addictive and so nerve-wracking. Freeman had interviewed Rivera twice and the man had never wavered in his story – he hadn't seen Jennifer. He had wanted to get back and hear the Golden Oldie, win a trip to Hawaii. He'd been at the door with Dr. Witt for a minute at the most.

  So the entire thrust of Freeman's interview had been to establish the time of delivery – not whether Matt had gone running upstairs calling for his mother.

  The old bear got up slowly, but by the time he had reached his spot in front of the bench there was no further sign that he had taken a blow. He smiled at the witness, nodded to the jury. "Mr. Rivera, we've had a few conversations over the past couple of months, have we not?"

  "Yes, sir."

  "And during those conversations, did I ever ask you if you saw Jennifer Witt while you were delivering this package on December 28?"

  "Yes, sir."

  "And how did you respond?"

  "I said I didn't see her."

  "Did you hear her? Was she, for example, singing in the shower or something like that? Moving furniture around?"

  Freeman was taking advantage of the rules that allowed defense in cross-examination to lead witnesses, and Freeman was also using this bantering tone to get back into a more relaxed mode with Fred, showing him what a regular Joe he could be.

  He got his small reward. Rivera grinned, loosening. "No, I didn't hear nobody singing or moving things around."

  "When the boy ran off, did he yell for his mother? Did he run up the stairs yelling 'Mom!' or anything like that?"

  A risky question – if the answer was yes it would hurt. But given the repressed nature of what they knew to be the tone in the Witt household, Hardy thought it would pay off.

  It took a moment of reflection. Hardy
glanced over at the jury. They were following every nuance. Faces were on Rivera. "No, I don't remember that."

  Some of the damage perhaps repaired, Freeman allowed himself a breath. "Let's go back, if we may, to what Matt said to his father. Can you tell us again what it was?"

  Seeing this new trap, Powell was on his feet. "It's in the record, Your Honor. The reporter can read back what Mr. Rivera said."

  Villars considered Powell's point a little too long for Freeman's comfort. Knowing that a trap could sometimes spring on the person who set it, Freeman withdrew the question. He did not want the jury to hear again how Matt had said 'I'm going to show this to Mom.' He had been fishing, hoping that Fred would come up with another paraphrase of the same idea, something like 'I'll see if Mom will like this when she gets home.' But no such luck.

  Smiling, Freeman turned back to the witness. "So, to summarize, you did not see Jennifer Witt in the house at 9:30?"

  "That's right."

  "You did not hear her either?"

  "No, I didn't."

  Freeman paused and realized that this was about as good as he was going to get, and it wasn't all that good. Giving the jury a confident grin, he said to Rivera, "Thank you, sir. No further questions."

  Powell, smelling blood, stood quickly and said he had a short question or two on redirect. "Mr. Rivera, when Matt went running off with this package, what was Dr. Witt doing?"

  "What was he doing? I guess he took the clipboard, looked at his watch, signed it and gave it to me."

  "Did he speak to his son?"

  "No, I told you, the boy went running behind him."

  "Yes, you did say that. He didn't remind the boy, though, for example, that his mother wasn't home?"

  "Objection!" Freeman was up, shot from a cannon.

  Villars pointed at Powell. "Sustained, Mr. Powell, you know better. Strike the last." And she directed the jury to disregard the question, which they would try to do. But Powell had done more damage, and he knew it as he graciously dismissed the witness.