The 13th Juror dh-4

by John Lescroart

  Now, with Powell's undoing of the mistaken identity argument, Alvarez would not be called. They were down to the ATM, their last 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 – al 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 you branch is 1.7 miles form 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 was 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 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 he shots weren't at 9:30, either, because the Federal Express driver, Fred Rivera, was there at 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 he prosecutor didn't react to her gaze. Freeman was walking to his seat, and Powell was actually 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 accurate time? It'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 these are all connected by some big computer, or someshuch."

  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. Freeman had said I might get in trouble."

  "Mr. Freeman said you might get in trouble?"

  "Yes."

  "How could 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 had 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?"

&n
bsp; "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."

  Everyone in the courtroom was watching. It was almost a straight line form the Midtown Terrace Playground at the end of of Olympia down to Parnassus Street.

  "And is this a level area, Ms. Reed?"

  "Objection."

  "I don't think so," Villars said again.

  "No, sir, it's all uphill."

  "Or downhill from Olympia Way?"

  "Yes."

  "So," Powell concluded, "if you ran through the medical center, you had only to cover a half-mile of ground as the crow flies, and all of it downhill. Even if the defendant had left her house at 9:40, she could almost have walked it…"

  *****

  By Friday, Hardy was going crazy sitting in his office, or strolling down to Freeman's, or going by the jail to talk to Jennifer, or looking into store windows. Waiting for the verdict was its own special hell.

  And if they lost, the case would become his and his alone. It had begun really to sink in that Freeman wouldn't even be there in the courtroom with him anymore – there was no reason for him to be. Freeman had been the guilt-phase attorney and – win or lose – his job was now over. He would write his appeal, if necessary, try for a new trial or a reversal, but as far as the courtroom was concerned, Freeman would play no more active role.

  When Freeman had first asked him to be Keenan counsel – the attorney for the penalty phase of the trial – Hardy had not fully realized its implications. He should have, he told himself.

  Now he alone would have the responsibility of convincing the same jury that convicted her, if it did, that Jennifer should not go to the gas chamber, that there were factors in mitigation. It would be his job to tell the jury what those factors might be.

  But of course all this led back to his belief, now, that the jury might find her guilty. It wasn't, he felt, that the prosecution had done such a bang-up job proving that she'd killed her husband, and accidentally, in some undocumented fashion, her son. Nor, he was convinced, had Freeman been inept, in spite of what Hardy considered to be his occasional lapses of judgment.

  No, if the jury convicted Jennifer it would be because they had become convinced that she was selfish, cold, a liar who stole from and cheated on her husband, a woman who mostly had shown anger rather than contrition – exactly the sort of human being who would do what Jennifer had been accused of.

  And – the source of much of Hardy's angst now – if the jury believed Jennifer was such a cold-blooded person, they could also not implausibly believe that she deserved the ultimate penalty…

  Hardy had asked Frannie if she could leave the kids with Erin for a couple of hours and have lunch with him, and now they were standing at Phyllis' station outside Freeman's office, making small talk, waiting on Freeman, who had invited himself along, when the telephone rang on Phyllis' desk.

  "David Freeman," she said formally – her standard response to incoming calls – then listened, lips pursed, nodding once or twice. "Thank you." Hanging up, apparently forgetting the presence of Hardy and Frannie, she pushed the button on her intercom. "Mr. Freeman, the jury's coming in."

  *****

  The gallery had filled up with media representatives in a remarkably short time. Hardy finagled a space for Frannie next to a reporter he knew on the aisle in the second row.

  Jennifer was escorted in and brought to the defense table. She was wearing a white blouse and tan wraparound skirt with low heels. Freeman patted her hand, though she seemed not to notice, sitting without expression, showing no emotion.

  When Villars directed her to, she stood at attention, staring straight ahead, flanked by Freeman on her right and Hardy on her left. The judge took the paper from the clerk, read it carefully, handed it to the clerk.

  "As to the first count, we the members of the jury find the defendant, Jennifer Lee Witt, guilty of the murder of Larry Witt, in the first degree, with special circumstances."

  Hardy felt his stomach churn. Half-turning, he noticed that Jennifer's reaction was the one he would have predicted – none. No, not quite. A muscle on the side of her jaw was moving, but otherwise she might have been waiting for a streetlight to change. He glanced at the jury box – they were seeing it, too. A cold woman, they must be thinking.

  Behind them, in the gallery, there was an insistent buzz, but Villars, after a perfunctory tap with her gavel, was bent on the job at hand. "As to the second count," the clerk read, "we the members of the jury find the defendant guilty of the mrder of Matthew Witt, in the first degree, with special circumstances."

  Freeman was holding her elbow. She did not appear to need the assistance.

  *****

  I'm not going to break. I'm not going to let them break me.

  They beat on you every way, every day, and their satisfaction is watching you fall apart. Then you break down. You beg them to give you another chance, you'll do better, anything you want. You'll change and be different and you won't even be yourself anymore if they would only stop making you hurt.

  Which is all the time, now. Especially since Matt.

  But I'm not going to let them anymore. Crying doesn't help. It never helped with Larry, with Ned, with Ken, even with these lawyers. They think it's an act, anyway, if I show how I feel. They don't know and even if they did, they wouldn't care.

  Why do I want to convince everybody? Of what? That I'm not a monster? Why should I bother? Of course they found me guilty. They always have…

  I am guilty in a way. I am to blame for getting myself to here, for becoming who I am – empty, used up. You let them beat on you long enough, eventually who you really are, that person goes away. Hides.

  Well, I won't give them that satisfaction anymore. That's something. Maybe a start…

  *****

  "I honestly didn't think they'd convict." Freeman's hair was all over the place in the late-afternoon wind. The sky was a thick gray blanket over the steps in front of the Hall.

  Hardy had his arm around his wife, who was feeling sick, her hand clutched to her stomach. She had waited in the courtroom until it had cleared, until Hardy had come out after going into the private suite with Freeman and Jennifer. Where Jennifer hadn't wanted to talk about anything.

  At least not with Freeman.

  She told Freeman, a smile of fury on her face, that he was lucky he had made her pay up front. If she had known he was going to lose… wasn't he supposed to be the best?

  He told her it wasn't over yet, of course that was her understandable reaction. But he'd be working on the appeal. There were grounds…

  Hardy had listened to part of it, then excused himself – he would talk to Jennifer later, without Freeman – and came out to Frannie. She wanted to go home.

  But Freeman caught them on the steps, wanting more post mortem. He was still fighting the case. He was going to appeal. "It came down to the three minutes…"

  Hardy felt he had to say something. "That was my fault. I thought it was a big deal."

  Freeman hit him on the arm. "That's bullshit," he said. "The whole thing was my show, don't kid yourself. I mean, I should have walked the route myself. If there was any way in the world she could have got to that bank in five minutes instead of eleven it was my responsibility to have found out how. Too many eggs in that basket." He pulled his jacket more tightly around him. "Anyway, I can probably get a new trial. Villars should have stopped this one after she granted my 1118."

  Whistling in the dark? Hardy had a hard time imagining that Freeman wanted to go through this exercise again. He also doubted whether as a matte
r of law Freeman was right. But he really preferred not to get into that. Instead he said, "Maybe you should have crossed Lightner. That's when it went south. If they were having an affair we could have made the case that he had as good a motive as she did."

  Freeman shook his head. "If," he said. "And if we could prove it, and if he hadn't had an alibi, which he did. Not to mention he pretty much convinced me he just wouldn't do that. No, I'm afraid Lightner just gave Jennifer a better motive, Diz. The less the jury saw of him the better."

  Frannie finally spoke up. "Guys, please, I'm really not feeling good, Dismas." She looked at Freeman. "Sorry, David, I can't handle this very well. Jennifer did not do this. How could they have found her guilty?"

  A gust whipped between them, stopping what Freeman was starting to say. Reconsidering, forced to really see her expression at last, he moved closer and put an arm out, encircling them both. "Go on home, Frannie. Get some rest. Diz, go on, you two go on home."

  *****

  In the car, Frannie was crying quietly. Hardy had the windshield wipers going in the drizzle. She held his hand in both of hers on her lap.

  "You're more upset than she was."

  Frannie shook her head. "No. She was just holding up, trying to hold herself together."

  Hardy glanced across. "Well, she's some kind of superhuman holder-upper then."

  Nodding, Frannie said that she had to be. "She did not kill Matt, Dismas. She didn't kill Larry, either. I still believe that."

  Hardy looked over at his wife. He squeezed both her hands, not knowing what to say.

  John Lescroart

  40

  Before she had known that the jury would be coming in that day, Frannie had made plans for the weekend. She knew that her husband would probably want to stick around, hang out with Freeman, discuss and analyze and worry. She didn't think that would be wise.