Hardy 04 - 13th Juror, The

by John Lescroart

  Phil DiStephano was a plumber who worked out of a medium-sized shop near the Kezar Pavilion. The dispatcher told Glitsky that Phil and two of the other guys were out to lunch and ought to be back within fifteen minutes, so he decided to wait.

  It wasn't that long. Glitsky stood up, the scar through his lips stretching into a white line as he found himself enduring the half-hostile stares of the three rednecks. Half-Caucasian, sometimes he found himself hating white people more than he ever hated all but the most repugnant of blacks. He thought it was probably a flaw in his character. He'd work on it someday, he really would.

  The dispatcher said something and the biggest of the three men turned around. He spoke in mannered polite tones, ostensibly cooperative. "I'm Phil DiStephano, is there a problem?"

  Glitsky had flashed his badge earlier and no doubt the dispatcher had passed along the information that this casually dressed strapping black man was the law. The other two plumbers flanked Phil but seemed to be waiting for an excuse now to go to the back room or their truck or wherever it was they went while they waited to fix drains and unplug sewer lines. He took out his badge again. "If you could spare a couple of minutes."

  He motioned outside — a jog of his head. Opening the door, he didn’t look back, but went halfway across the sidewalk and turned, arranging it so that the sun was behind him. When he turned, Phil had followed him and stood off a few steps, squinting, beginning to sweat.

  Glitsky let him.

  He took it for about ten seconds, which seemed like a very long time. "We got a problem here, Officer? I've go some calls I've got to—"

  "Dismas Hardy." Glitsky wanted it so quiet that Phil would have to listen carefully.

  "What's that?"

  Glitsky repeated it. "Your daughter's attorney? Guy you visited last night?"

  Phil put up a hand. "Hey, now you wait a minute. Hardy came by my house. I don't know what he's telling you but he's the one…"

  Phil went on a while longer, the sweat now shining across his forehead. When he wound down, Glitsky asked him if he was all finished.

  "I don't know if I am." Phil seemed heartened by Glitsky's tolerance, his quiet patience — arms folded, hearing him out. "I'm thinking maybe I should call in some report on him, you know. He's gonna keep up this kind of harassment—"

  "I'm harassing you?"

  "No! No, I didn't mean that. I meant him coming to my place, bothering my wife."

  It had gone on long enough. Glitsky thought that another of his flaws was that he hadn't sufficiently enjoyed burning up ants under a magnifying glass when he was a kid. He nodded his head, as though he'd taken in all of Phil's information, considered it carefully. "Hardy didn't bother your wife."

  "Sure he did. He was there and—"

  "Andi if I hear that you've threatened him again, you're going to find life in this town very hard. You're going to get speeding tickets. You're going to get towed whenever you park."

  Phil was moving into Righteous Indignation, Act I. "Are you threatening me?"

  "It's entirely possible you could even lose your job. Bosses don't like employees who have the cops down on them. It's bad for business."

  "I don't have to listen to this. What's your name again? You can't do this."

  Glitsky's scar shone bright through a cold smile. "I'll bet I can." He lowered his voice. "The name is Inspector Sergeant Abraham Glitsky — you need me to spell it? I'll give you my badge number if you want."

  Phil stood there, the sweat running down his face. Glitsky moved a step closer. "Hardy's a friend of mine. I'd make him a friend of yours, too. In fact, I'd say it's in your best interest to see that nothing bad happens to him — because if it does, I might be tempted to think you were part of it, and that would be unfortunate for you."

  He turned and left Phil sweating in the sun. Getting into his car, he heard and ignored the explosion of obscenity. He had expected it and it rolled off. He had delivered his message, put out the word. It was what he'd come down for.

  26

  By Friday, in spite of her assurances to the contrary, Donna Bellows had not called back with news of any connection between Crane & Crane and Larry Witt. Freeman was chomping for any crumbs he might use at trial, so Hardy, covering the bases, thought that he'd call down to LA again, though he entertained little hope that there was even a tangential link between Simpson Crane's murder in Los Angeles and Larry Witt's in San Francisco.

  On reflection, the whole thing was so tenuous that he didn't want to pursue it at all. Which was why he had hoped that Donna Bellows would have called him back — so he wouldn't have to chase this phantom himself. Nevertheless, he was doing his job, following leads that so far led nowhere. Freeman wanted them all to juggle, see how much he could keep in the air — as he'd often done in the past — sufficiently dazzle the jury with his legerdemain so they wouldn't notice it was being done with mirrors.

  Look this way, now look at this. What about this? Whoa! There's a neat trick. Anything to distract, to draw attention away from the evidence they both thought had a good chance of damning their client.

  Hardy's feet were on his desk. The door out to his hallway was open and so was the window over Sutter Street behind him. Faintly, he smelled the Bay. The cross-ventilation felt good in the room. The phone down in Los Angeles was ringing and he picked up a quick dart and tossed it across at his board — it landed in the "1", a quarter-inch from "20."

  He spoke to a monotonic receptionist, who put him on hold. Waiting, he threw another dart, this time hit the "20," and was talking to an extremely formal secretary.

  "Mr. Crane is in a meeting right now. May I help you?"

  Hardy tended to respect secretaries — even formal ones like Phyllis — but he had a hard time with the Secretary-as-Keeper-of-the-Gate school. He thought that in the long run, for important issues, it wasted far more time than it saved. Principals ought to talk to principals.

  He was polite. "If Mr. Crane is in, I'll be glad to hold. It's a matter of some urgency regarding a murder trial."

  There was a sigh, another long hold, then a weary man's voice. "Todd Crane."

  Hardy raised his victory fist in the air, introducing himself, expressing his condolences. But Crane kept it to the point. "Maxine said this was about a murder trial. How can I help you?"

  Hardy explained about the post-it he'd found under Larry Witt's blotter with Crane & Crane's number written on it, the word "No" underlined and circled several times.

  "I'm afraid I don’t… What was this victim's name again?"

  "Larry Witt. Dr. Larry Witt."

  "Sorry. I'm drawing a blank on that."

  Hardy took a shot. "How about the Yerba Buena Medical Group? YBMG?"

  "Okay, Was Witt with them? We handle their business development. That's Jody Bachman." He spelled it for Hardy. "You want me to connect you?"

  The telephone — presumably in Jody Bachman's office — rang ten times before Bachman's voice mail picked it up. Thinking here we go again, Hardy left his name and number and a brief description of what he wanted.

  He got up, threw the last dart on his desk and hit the "5" on the other side of "20," then turned around and looked down out the window onto Sutter Street. In spite of Bachman not being in, he found himself somewhat encouraged.

  There was, finally, a link between Larry Witt and Crane & Crane. Sure, he knew that there would have had to be since the Post-it had had Crane's number on it, but the relationship had proved elusive to establish. And now he'd done that. Like the cross-ventilation, it felt good. Finding out facts felt good.

  Of course, what those facts supported — what they even meant — was another issue altogether, and since it was Friday afternoon, Hardy didn't feel much in the mood to pursue that line. Facts related to the "other dudes" line of defense seemed to lead to a fork in the road to the truth that led to a dead end.

  He had uncovered a fact. But did it lead anywhere?

  The police in Los Angeles thought, although they co
uldn't prove it, that a hit man had murdered Simpson Crane and his wife. Simpson's firm — one of the partners anyway — handled the business development of the medical group that Larry Witt belonged to. Even a genius like David was going to have a difficult time establishing any provable causality between those two bits of data.

  At least Hardy felt like he'd done his job. Bachman would call him back about details before they really got into the trial, which probably wouldn't be for another month or so. Glitsky had consented, reluctantly, to see what he could find out about the Romans on the day of Larry's murder. Over the next weeks he might see Nancy DiStephano again and try to get a line on where Phil and Tom had been on the Monday after Christmas.

  So Hardy had "other dudes" by the carload. For the time being, his job would be to assist David Freeman, research legal issues that might come up, prepare for his own phase of the trial, the penalty phase, if Jennifer got convicted.

  He was going to see what David Freeman could do with his brains, his showmanship, his fabled, much ballyhooed je ne sais quoi.

  Part Three

  27

  On Monday, July 29, Oscar Thomasino had slammed down his gavel and sent the case of The People of The State of California v. Jennifer Lee Witt to Department 25, the courtroom of Judge Joan Villars. That formality was quickly followed by a flurry of motions made and denied. Jury selection would begin as scheduled on August 23.

  David Freeman had immediately filed his pro forma Penal Code 995 motion for dismissal, arguing that there was insufficient evidence to proceed and, as expected, Judge Villars had thrown that out. If a grand jury had found sufficient evidence to indict on three counts of murder, it was an unusually brave or foolish judge who would cast aside their decision.

  * * * * *

  Jennifer's hair had grown out, her bruises had disappeared. When she appeared in the courtroom for the first time flanked by two bailiffs, a buzz went up in the gallery. The defendant looked like a movie star.

  Gone was the red "jail escapee" jumpsuit; gone were the leg irons and handcuffs. Judge Villars, prodded by Freeman, had agreed that they would be prejudicial to his client. Also, there would be no need to shackle her to her chair at the defense table. Although Jennifer had broken out of jail, even Powell admitted that there was little risk that she would bolt and escape the courtroom.

  Jennifer wore low heels, nude hosiery, a stylish, muted coral dress with a hem an inch above her very attractive knees. Freeman had arranged to have someone come into the jail and do her hair, and now it shone clean, blonde, just long enough to be feminine and proper. Diamond stud earrings. A tasteful touch of make-up.

  They led her in before the judge entered, while the members of the media as well as the eighty potential jurors were finding their seats behind the rail. Hardy, who had been talking with Frannie at the defense table on the left side of the courtroom, heard the noise in the gallery and looked up, stopping in mid-sentence. "My goodness," he said.

  Freeman half-turned. A few flash bulbs went off — Villars would put a stop to that as soon as she came in, but for now Jennifer was fair game. She smiled in her ambiguous way — either shy or posing — and more bulbs went off.

  The bailiffs delivered her to Freeman, who put an avuncular arm around her waist, guiding her to a chair between himself and Hardy. "You look good," Freeman told her. "Just right."

  "I'm scared," Jennifer said.

  Freeman rubbed a hand over her back. "It's all right, that's natural. You just sit here and relax."

  Hardy noticed that her hands were shaking. She clasped them together on the table in front of her, her fingers tightly intertwined. Freeman came around on her right and covered them with one of his gnarled paws.

  Over the past weeks Hardy had seen the earlier animosity between lawyer and client dissipate as they worked together fashioning a defense. Now, though Freeman still apparently believed that Jennifer was lying about her innocence, he had somehow convinced her that he was her best and most trusted friend — that he, personally, was her only salvation. Accordingly, she had come to cling to him, her life raft in a stormy sea. That was all right with Hardy, who might yet have his own role to play, and it would not be as liaison between Jennifer and David Freeman.

  It was 9:23. Villars would enter in seven minutes. Dean Powell and his associate, a young Assistant DA named Justin Morehouse, were conferring, shuffling papers on their table a dozen feet to Hardy's right.

  "Jennifer."

  Dr. Ken Lightner had come up to the rail, and Jennifer turned in her chair, then stood and put her arms around him. One of the bailiffs came moving up fast, but Freeman held out a hand and somehow restrained him from breaking them up. It was over in seconds anyway, Jennifer pulling away, kissing Lightner's cheek.

  Hardy made a mental note — probably Freeman did too — to caution Jennifer about these kinds of public embraces. They could too easily be misinterpreted. Both Hardy and Freeman knew about the bond between Jennifer and Lightner, but it would be difficult to explain to a jury. Woman accused of killing two of her husbands hugs another man as her trial begins. No, it wouldn't look good.

  Jennifer, Freeman and Lighner were huddled, whispering together at the railing that separated the gallery from the courtroom proper. Walter Terrell had appeared and was having a few words with Powell and Morehouse.

  Even though he would play no active role in this part of the trial, Hardy's mouth was dry, his stomach jumpy and sour. He turned in his chair to pour himself a glass of water in time to see the door open behind the judge's bench, the clerk intoning that all should rise, Department 25 of the Superior Court for the City and County of San Francisco was in session, Judge Joan Villars presiding.

  * * * * *

  The concept of voir dire — the questioning and selection of jurors — had undergone a sea change in California since the passage in June 1991 of Proposition 115. Before that time, attorneys on both sides of a case were given a wide latitude in questions they could ask prospective jurors. What did they do for a living? How many brothers and sisters did they have? What were their hobbies? Favorite books and/or movies? Feelings about puppies? Cats? Goldfish? Almost anything went if it might serve to bring out a prospective juror's character. Often the questions were thinly disguised speeches designed to sway prospective jurors. And because of this, jury selection in a capital case such as this one could easily take as long as two months and in some cases longer.

  Since Proposition 115, however, voir dire was conducted by the judge and — as the proposition had contemplated — tended to go much more quickly. Attorneys could supply the judge with a list of questions they wanted to see asked, but often these were ignored. Likewise, in the case of Jennifer Witt, Freeman had asked Villars if he might ask direct questions of some of the jurors. The answer had been no.

  Lawyers for the prosecution and the defense still had their twenty peremptory challenges — the right to dismiss a prospective juror for any reason whatsoever or no reason at all — but the empaneling of the jury was now much more outside the perceived control of either counsel. It was the judge's show.

  Jurors were asked if they had read about the case in the newspapers, if they could sit through a three-month trial and, perhaps most importantly, if, in the appropriate case, they could vote for the death penalty. Out of the first eighty jurors, after perhaps three days of questioning, maybe four would be available for service and they would be told to come back at the end of September. They would be part of the pool from which the twelve jurors and six alternates would be chosen. Then Villars would send for eighty more.

  Except for the half-moon reading glasses, Judge Villars was Hardy's notion of an elderly Joan of Arc. With her helmet of gray hair over a benign and handsome face, Villars might strike a casual passerby on the street as a grade-school principal, fair but firm, perhaps even with a rogue streak of humor.

  But as Freeman had told Hardy when they had drawn her for this trial, looks could be deceiving. Villars was close to humorless, a
n authoritarian on the bench. Freeman did not think it was purely the luck of the draw — although it was supposed to be — that had brought this capital case to her courtroom. He fancied that he smelled the sulfurous machinations of Dean Powell behind the scenes.

  Villars was also the least likely judge in Superior Court to be reversed on appeal. If Powell got a conviction in her courtroom, there was a likelihood that it would stick.

  Hardy did not like something else — Judge Villars wasn't likely to overturn a jury's recommendation for the death penalty, if it came all the way to that. When they had drawn her, Hardy had tried to convince Freeman to challenge out of her department. Similar to their rights with jurors, attorneys for either side in California had one peremptory challenge of the judge assigned to any given case. The result in theory was to keep judges from getting too uppity, inserting too much of their personalities or beliefs into trials designed to be objective. If a judge made things too tough for the prosecution, for example, the DA's office could decide to challenge that person "out of the building," and a few judges over the years had found their careers ended when they had been too free with mandating from the bench some uniquely San Francisco notions of fair play.

  Legally, in theory, judges had tremendous responsibility and leeway — even in a capital case, months of a prosecutor's hard work and a jury's long-contemplated decision could be overridden by any judge who decided — for almost any defensible reason — that justice was not being done. But it was also true that any judge who exercised that privilege too often might be off the bench.

  Hardy had wanted to challenge Villars. In spite of her gender, she had acquired the reputation of being especially hard on women. Throughout her career she had, it seemed, leaned over backward to avoid giving the slightest appearance of favoritism to female attorneys, staff, defendants. A few years earlier she had been in the vanguard of a successful effort to dump the Chief Justice of the California Supreme Court — a woman — because of her "soft stand" on the death penalty.