Hardy 04 - 13th Juror, The

by John Lescroart

Hardy was at Lou the Greek's, finishing his coffee and calling it lunch, having long since given up hope that what he had ordered would become edible. Lou's wife was Chinese and she did the cooking — some of it delicious, all of it unique — but today's special of Sweet & Sour Dolmas just flat didn't sing.

  In nearly two hours of discussion with Freeman and himself, Jennifer had not budged — she was innocent. They were not going to plead guilty even if they could. Which, in its own way, was good. At least it eliminated any ambiguity. Jennifer was sticking her attorneys with the classic passive, negative defense — at every turn, demonstrate the weakness of the prosecution's case; the burden of proof was on the prosecutor and Freeman's position was going to be that they had not met that burden. Period.

  Except, of course, nothing was really that simple. As both Hardy and Freeman had tried to point out to Jennifer, the prosecution's case, on the face of it, was not so thin. They had physical evidence, putative motive, even eyewitnesses. This was not, they had argued, some high-handed political vendetta come home to roost. Nobody had been out to get Jennifer Witt — the evidence had persuaded the grand jury to indict her, and it well might persuade a jury to convict.

  The charges involving her first husband Ned made it much worse. The evidence might be older, but the coincidence factor, if that's what it was, to say nothing of the presence of significant insurance money in both instances, would be daunting to overcome.

  At the same time, though, Jennifer's position gave Freeman a strategy and Hardy a concrete direction. Given their client's demands, there was only one course, time-honored and true, that they could take. Find the holes, if not in the facts, then in the arguments interpreting them.

  * * * * *

  The fog had burned off but, lest SanFrancisco bask in sunny warmth, the wind had come up off the ocean. Hardy stood in the outside stairway four stories up the Hall of Justice, listening to it howl through the structure that one day would be the new jail just across the way.

  Abe Glitsky opened the door and stepped outside. Papers swirled and dust eddied. He took it all in. "I've got a nice office not a hundred feet away. Remember?"

  "Powell's in there."

  Glitsky nodded. "All too true. He works in this building. Which, I might add, you don't. Exactly what are we doing here, Diz?"

  "We're having a secret meeting, Abe. I wondered if you felt like taking a ride with me?"

  Glitsky's hands were in the pockets of his parka. He pursed his lips and the scar through his lips burned white. "Middle of the week, middle of the day, sure. I'll just take off. Nobody'll miss me. I don't do anything anyway."

  "Abe, I need you to prevent me from committing a felony, which if I do and get caught—"

  Hardy stopped him. "Please, Abe, this is a critical time for my life and career. If I commit this felony, and if I get caught, I'll lose my license, get disbarred, Frannie will probably divorce me, the kids will have to live knowing their father's a criminal. Even talking about it, my life flashes before my very eyes…"

  "Your very eyes." Glitsky shook his head and the wind gusted.

  "Come on," Hardy said. "Won't even take an hour."

  * * * * *

  "Why do I do these things?" Glitsky asked.

  "I think you've got a deep-seated need to prove yourself. I worry about it sometimes. I really do. A guy your age."

  "My age is your age."

  "I know, but I'm younger. I look better, too. It's funny but it's true."

  Glitsky chewed his cheek. "Sad."

  They were in the lobby of the Bank of America at the corner of Haight and Cole. Hardy had given Jennifer's power of attorney to the vice-president, a young black woman named Isabel Reed who did not appear to have any problem with Glitsky's age or looks. She had been checking on the ATM withdrawal on the morning of December 28 and returned with the news that the account had been accessed at 9:43 a.m., and since they were talking about times anyway, she'd be getting off at 4:30 if there was anything else they needed to talk about…

  Hardy said no, he thought that was about it, that she'd been a big help. He nudged Glitsky and they started to turn to go..

  "I'm here every day," Ms. Reed offered, "if you need anything else."

  "You know…" Hardy stopped, just now remembering. "There is something if you wouldn't mind. Abraham, you think we should calibrate this thing?"

  This, as Hardy had explained to Glitsky on the way out here, was why he had to come along. Glitsky's badge got them access not just to Jennifer's account but to the whole automated system. While an obliging bank employee ran receipts out of the ATM, Hardy dialed POP-CORN — the number provided by Pacific Bell that police used for the "official time" of emergency calls to 911 — and checked it against the bank's computerized clock on the ATM.

  They found that there was a three-minute difference between the times — 2:11 at the bank and 2:14 from Pac Bell.

  "Is that important?" Ms. Reed asked Abe. Hardy had ceases to exist altogether.

  "It could be crucial," Glitsky admitted, "in this case. But you should have it checked in any event. Records aren’t much good if they're not accurate."

  Ms. Reed, nodding and attentive receiving this wisdom, thanked them both and gave Glitsky one of her cards. Then, clearly as an afterthought, she pulled out one for Hardy, too.

  Outside, the gale blew and both men leaned into it. "That's why you do this," Hardy said through his clenched teeth. "Records aren't much good if they're not accurate."

  Glitsky, happily married with three children, couldn't stop smiling, something he did perhaps twice a year.

  Driving back downtown, Glitsky finally spoke. "I give up," he said. "What felony have I prevented by this astute police work?"

  Hardy answered straight-faced, "Plan B was for me to dress up like a Ninja, break into the bank in the middle of the night and do the cross-check. Plan B wasn't very good. I didn't think it would work."

  Glitsky shook his head, withholding comment.

  Hardy did some figuring. When Mrs. Barbieto had called 911 at 9:40, it had been 9:37 at Haight and Cole. If Jennifer had left two minutes before the 911 call at 9:35, which was Mrs. Barbieto's testimony, she would have to have run 1.7 miles to the bank and access her ATM at 9:45, eight minutes later. She couldn't have done that. If, on the other hand, as Hardy surmised, it was more like five minutes between the shots and Mrs. Barbieto's call to emergency, Jennifer would have had eleven minutes, three plus eight, which was fast but, Hardy thought, doable.

  Glitsky, not knowing why, had been right. Ms. Reed's ATM information could prove to be important, maybe even crucial.

  * * * * *

  He had to go upstairs to the jail again, because although Jennifer had given him permission to enter her house, he had neglected to pick up the key, which the sheriff was keeping with the rest of her effects. Hardy needed Jennifer's signature so the sheriff would release the key to him.

  "Mr. Hardy, is it?"

  The hand was out and Hardy took it. It was a surprisingly weak grip for such a big man — Ken Lightner, Mr. Clairol with his brown hair and red beard, Jennifer's psychiatrist, was standing inside the bars by the elevator as the door opened.

  "I was just visiting Jennifer. We've got to get her out of here. She doesn't belong in that… you are here to see her, aren't you?"

  Hardy explained about the key. He didn't warm to this man but he could be polite.

  "Actually," Lightner said as the elevator closed, "perhaps it's fortunate that you're here. I was going to call you."

  "If it's about Jennifer you should try David Freeman. He's her lawyer in this matter."

  "Well, Freeman," Lightner paused, began again. "Jennifer seems to have a higher opinion of you."

  Hardy shrugged. What was he supposed to say to that? He'd let Lightner figure out where he was going.

  "I mean, you're representing her, too, aren't you?"

  "I have to tell you that if either you or Jennifer thinks I'm anywhere near the trial lawyer that D
avid Freeman is, you're both mistaken. David's a little abrasive, okay, but that's mostly just his style. He doesn't get beat too often, and that's where Jennifer's interests lie."

  "What if she just likes… feels more comfortable with you?"

  There wasn't much room in the area between the elevator door and the bars, but Hardy backed away a step. "This is not a comfortable situation, Doctor. I'm working with David, for David, I'm not that involved in Jennifer's defense on the guilt stage, and I'm a little confused about your role in all this. Did Jennifer ask you to talk to me?"

  "Not directly, no. I'm not interested in offending you, Mr. Hardy, but my main concern is Jennifer. She's lost, upset, grief-stricken… she's very, very unhappy—"

  "She's in jail, Doctor."

  Lightner turned his head abruptly. Impatient. "No, no. I don't mean her situation now, here." He got a grip on himself, spoke more quietly. "Look, Mr. Hardy, she can't stay here. I don't think she'd survive a year, whatever it might be for the trial, in there. Have you seen… of course you have. You know what it's like. And Mr. Freeman tells her to forget about bail. Why? Is that in her best interest?"

  Hardy was losing some of his own patience. "It's about reality, Doctor. I'd advise the same thing if I were the primary cousel representing Jennifer. I'm afraid she's not going to get bail. She's not getting out."

  Lightner shook his head. "If she stays in jail I believe it's not unlikely that she will kill herself."

  "You're talking to the wrong person. You should be talking to the judge… or the legislature. Besides, I think that's a little extreme. Jail's rough, no question, but I certainly didn't see any sign of suicidal depression this morning and I was with her for two hours."

  "Would you know it if you saw it, Mr. Hardy?"

  Hardy knew he had a point there, but the man was getting to him. "I think so. Now if you'll excuse me—"

  "No, listen, listen please."

  Hardy waited.

  "I'm sorry. Maybe we've gotten off on the wrong foot, but somebody's got to understand what's really happening here," Lightner said.

  "And you know?"

  "I know. I've been treating this woman for four years. I've had to prescribe anti-depressant drugs during crises. Jennifer is clinically depressed."

  An obvious if ingenious thought occurred to Hardy. "Well, Doctor, if she'd been depressed for four years, it isn't jail that's doing it to her." Hardy glanced at his watch. "Now I've really got to go. Sorry."

  Lightner touched his arm and took a deep breath, as though making up his mind about a major decision. "Suppose I told you," he said, his voice low now, "that she may have actually done it. Don't you want to know why? It's what this is all about."

  * * * * *

  "You said you noticed it yourself… one minute she's so smart, almost playful, the next she's like a beaten victim — head down, uninvolved, at sea. She has no appetite, she's subject to extreme mood changes, lethargic to hyper-active. Nightmares ruin her sleep. All of these are classic signs of clinical depression."

  Hardy had gone with Lightner to pick up the release — the reason he'd come up here in the first place — and they had ridden together down to the third floor, the DA's floor. Hardy, who used to be employed in the building, knew a few of the private spaces, and he brought Lightner now into the reporter's room just off the hall by the elevators.

  Here, on a Thursday afternoon, there was no peace. No reporters, no other people. A comfortable clutter amid recycled school desks and old pitted library tables.

  But Hardy's main interest wasn't in Lightner's diagnosis of Jennifer. "It still doesn't mean she killed anybody."

  Lightner was sitting forward on one of the tables next to the slatted window. "No, it doesn't of itself, but I'm telling you now… I'm afraid she did kill her husband."

  "You're sure of that? She tell you?"

  "No, but I know."

  "And her boy?"

  "I don't know how that happened. It could have been a mistake. She might have thought he was Larry."

  "A seven-year-old boy? Her own son?"

  "I said I don't know how it happened. The boy might have gotten between them, the gun went off, I don't know, some terrible accident."

  Hardy didn't like to admit it, had in fact avoided this conclusion each time it had surfaced before now, but Lightner had a point. Every day people got killed by mistake with firearms. You put a gun in the picture, you got the possibility of an accident. Hardy could invent half a dozen scenarios himself that might have resulted, accidentally, in Matt's death.

  "Except she denies it," Hardy said. "But, for the sake of argument, how do you know? Why?"

  Finally, an open question. Lightner pushed his well-tailored bulk back onto the table. Sunlight cut steeply through the motes by the one window, fell across the psychiatrist's face, highlighting reds in the handsome beard.

  He sighed, his fists clenched. "The simple answer," he said, "is to stop Larry from beating her."

  Hardy was cramped into the seat of a one-piece, old-fashioned school desk, complete with built-in inkwell, around which he was running his finger, leaning back, legs stretched out straight in front of him, crossed at the ankles. "She says he didn't beat her. She says they fought like everybody else but—"

  "Of course, she says that. But it's not true."

  "It's not true," Hardy repeated. "How do I know it's not true?" He held up his round-the-inkwell hand. "No, I'm not starting in again. I'm asking if you've got any proof, any corroboration. Jennifer's admission? Anything? I presume you're telling me this to give her an out, an excuse that might clear her if she did it."

  Lightner nodded. "Yes, but I'm on very tenuous ground here, Mr. Hardy. I know that. Well, I've persuaded myself, that I can tell you some of what I know, things you might find out from other sources given enough time. But I'm afraid I can't tell you how I know it."

  It took a moment before Hardy said, "Privilege."

  There it was, that familiar double-edged sword. Lightner's head inclined a bit. "Without my input, there still should be records that point to it. She never said, but I believe she must have switched physicians. They're mandated to report."

  He was right about that, Hardy knew. When the same person, a woman, say, or a child, visited a doctor with burns, contusions, abrasions, bruises, saying they fell of their bicycle, down the stairs, walked into a door, whatever — if it looked suspicious the physician by law had to notify somebody in law enforcement. There was compelling reason to suspect abuse.

  Hardy asked the obvious question. "But you knew Jennifer was being beaten. Why didn't you report it?"

  Lightner was still on his hands, an unhappy look on his face. "We're exempt from the mandate. She refused to let me. She was my patient. I was her psychiatrist. It was her right."

  "So she changed her doctors so they wouldn't suspect. Or report it. Anything else?"

  "Neighbors might know. How many times have they moved? Sometimes that's a clue."

  Hardy pointed out that all this might be fine, but Jennifer herself was the most likely source of corroboration about whether or not she was a battered wife, and she was denying it. "You'll agree," he said, "this poses something of a problem for us."

  "I see that, yes, of course."

  "Well?"

  "I just thought you had to know. As you said, "It's got to be her defense. It's why she did it."

  Hardy tried to straighten up in the tiny chair. He put his elbows on the desk. "Dr. Lightner, I've got to remind you, she denies both battery and that she killed anybody. We went over this again and again this morning and she isn't going to go with any battered wife defense — not with Freeman, not with me, not with anybody. And this leads me to the question… Why in the world wouldn't she just admit to being battered? As you said, people are increasingly getting off on this defense these days. The precedents are in place. We told her that. So why, since it's got a good chance, maybe the best chance, to save her life, won't she agree to it?"

  "She
's embarrassed."

  For a second, Hardy thought he'd heard wrong. "Say what?"

  "She's embarrassed. She doesn't want anybody to know that she's the kind of person who could live with being beaten. Why wouldn't she just leave?"

  "Exactly."

  Now Lightner leaned forward, into it. "But don't you see? That's the problem. They can't leave! I know this might come across as socialized slaptrap to you, but in some cultures, it's more socially acceptable than in others to take this kind of domestic abuse, but it's not among upper-class whites in our culture."

  "Well, now she herself is upper class. She's made it and she's not going back."

  "What if she's convicted? What's she got?"

  "She's still got her self-image."

  "And you're telling me that's more important than her life?"

  "I don't think she's ever faced that."

  Hardy realized that Lightner could be right. Stuffed into the tiny desk, his posture was getting to him. He wedged himself out, standing.

  "So Jennifer won't admit she was beaten… battered, essentially because she's embarrassed."

  "That's right. Embarrassed may be too weak a word. Mortified is better, that she was battered, almost ritually beaten and, unbelievably, maybe even to herself, stayed around to take it." Lightner slid off the table.

  Hardy was rubbing his shoulder. "I don't mean to offend here, doctor, but is any of this psycho-babble? I mean, how many of your conclusions, assuming I independently discover some facts, can I depend on?"

  Lightner didn't appear offended. He nodded. Maybe he thought it was a good question. "All of them, I'd say."

  11

  In the morning daylight the Witt home was impressive. The previous night, when Hardy and Frannie had driven by, there had been a sense of solidity to Olympia Way, high up on Twin Peaks. Most of the street bordered the Midtown Terrace Playground. It had been quiet, almost ghostly. Working street lights cast their beams through the early spring foliage of the trees that overhung the street. Hedges seemed trimmed and full-grown.