Freeman took another swig of beer. "So you didn't sleep with her. But why didn't you tell us about how she felt?"
Lightner was shaking his head side to side, as though lecturing a child. "That would have been rather stupid."
"Why?"
"Because it would announce to the jury that Jennifer wasn't in love with her husband, that she wanted out of the marriage. You think that would help her, help your case?"
Freeman shrugged. "It's out now, Doctor. How about that?"
"It came out. Nobody volunteered it. There's a difference." Lightner's voice was down to a near-whisper. "Listen, please, do you think if I thought it would help Jennifer that I wouldn't have lied? I'm human, I'm even at least a little in love with her." He shook his head. "It happens both ways in therapy. A professional recognizes it and controls it." He seemed to notice the beer for the first time and pulled it toward him. "Don't you see, she realizes that, it gives her the freedom to feel as she does and not be afraid I will take advantage of it. It's in part why she trusts me."
"But she stayed with you ."
"She was scared, Mr. Freeman. She wanted to stay with me. I decided to allow it. It may have been bad judgment. As I said, I'm human too. Even though I am a shrink." He half-smiled.
Now Lightner took a drink. "That's all of it, Mr. Freeman, and you can believe me or not. I could not turn her out. We draw our own lines. I let her stay in the room with me. Platonically."
Freeman crossed his hands in front of him again. He sighed. It was not impossible. "I still say you could have told me this earlier."
"I didn’t want it to come out at all, don't you understand that? Nothing about it. I was afraid it would hurt Jennifer at this trial. It would seem to say that she had a strong motive — in addition to the money, or whatever else they're saying, to get rid of her husband. Wouldn't it? It would cast her in the role of a cheating wife."
"And now it has."
Finally, Lightner seemed to lose his patience. He slapped at the table. "Well, that was not me. I did not make that happen. And if you want to bring it up again tomorrow and hammer at me, if you think you'll be doing Jennifer any good, then so be it. I'll repeat what I've told you here and you can watch while the jury takes in the fact that Jennifer had a strong emotional reason to kill her husband, maybe even her child, maybe even on purpose… so that she could run away and start a new life with her shrink." He grimaced. "If you really think that's going to help her… well, you can't possibly. The best thing you can do for Jennifer, Mr. Freeman, is forget about her and me."
Sipping his beer, Freeman nodded. "It also lets you off."
Lightner shook his head again, as though regretting what he was about to say. "Mr. Freeman," he said, "I was in my office that morning and I can establish that. I'm afraid the jury is going to focus on Jennifer, on her supposed motive, or motives, on the fact that she didn't love her husband anymore, that she wanted out of a terrible marriage." Lightner drank off half his beer. "My God," he said, "you're the lawyer. Do you think I wanted this to happen? Do I have to draw you a picture?"
His eyes sad, dispirited, Freeman spun his empty bottle between his hands. "You just did," he said.
39
"Good morning. I'm not going to take up too much of your time with my defense statement this morning. You probably feel you've been here long enough. I don't want to bore you on the one hand or insult your intelligence on the other."
"But I do think it will be useful to recap what's happened here in this trial, so far as the evidence is concerned, because evidence is what trials are really all about. Does the evidence prove beyond a reasonable doubt that Jennifer Witt killed her husband and son? Well, looking at the evidence, which we've now seen every bit of, the answer, ladies and gentlemen, is no."
"Let me repeat that: The evidence we've seen so far does not prove that Jennifer Witt killed her husband and her son, and that's what it has to do."
Freeman, voice low, in his least aggressive tone, spoke in place, gesturing occasionally with his hands, but seemingly content to let his words do their work. He stood before the jury box, directly in front of the table shared by Hardy and Jennifer. He did not so much as glance at Judge Villars, or turn to Powell and Morehouse at the prosecution table. This was his statement to the jury and he was going to play to them.
"The evidence has to prove that Jennifer Witt has done these terrible deeds. It must allow for no other reasonable explanation. It is not enough to say, 'Well, maybe she could have been there and done this.' You must be absolutely convinced. There must be no doubt."
"Your Honor." Dean Powell appeared saddened by the need to interrupt. He conveyed how much he just hated to break Mr. Freeman's rhythm, but alas, he really had no choice. He spoke with considerable control. "This is argument, not an opening statement."
Surprisingly, Villars overruled Powell. Hardy thought it was the first time in the trial that he'd seen Villars blow a call on the law, Freeman was out of bounds — this was clearly argument. Evidently it was an argument that appealed to the judge.
But Freeman had no cause to gloat. He knew it, and picked right up. "And what do we, the defense, have to prove? Do we have to prove that Jennifer Witt was not at her house? That she did not use the gun? That she did not have a lover? That, perhaps, she did not know about her husband's insurance policy and the double-indemnity claim? The answer is that we do not have to prove a thing? The burden of proof is on the prosecution and it never goes away from the prosectution. Mr. Powell here" — and Freeman turned slightly — "his job is to prove Jennifer Witt did those things, and you know what? He just has not done it."
Hardy had to admire Freeman. The man was a fighter. Freeman held up a finger. "One — no one — ever — has positively put Jennifer inside the house when the shots were fired. This is a fundamental flaw that, by itself, creates reasonable doubt."
"Two." Another finger. "And this is also crucial. The prosecution has offered no motive, no theory, no reasonable hypothesis at all for the shooting of young Matthew Witt. It is simply asking you to believe that Jennifer Witt, for some unknown reason, shot and killed her only child. There has been no effort to prove that she did, or why."
Jennifer still took any mention of Matt heavily. Her head went down for an instant and she sucked in a breath, swallowing hard. She reached for her water and drank.
"Three. The first witness to even put Mrs. Witt near the scene at the time of the shooting — that was Mrs. Barbieto, you'll remember — was not even close to being clear on the amount of time that had elapsed between hearing Jennifer next door and the shots. It might have been fifteen minutes. In fact, it quite possibly was.
"Four, Mr. Alvarez says he saw Mrs. Witt running down the street away from him within a minute of the shots. One minute. Let's recall the testimony of Mr. Alvarez on this famous one minute. He said that he walked directly from his wife's bedside to the window at the front of the hallway overlooking Olympia Way, a distance of perhaps twenty feet. And there was Jennifer Witt, already — in that short minute or less — outside the gate to her house, looking back at it."
This, Hardy thought, was clear by now. And it was a crucial point. Even if she had run, Jennifer could not have made it from her bedroom — where the killings had occurred — down the stairs, across the living room, out the door, down the walkway and out the gate, closing it and turning around in the amount of time it took Alvarez to walk twenty feet.
Freeman paused briefly to let it sink in. More quietly now, confident in his facts. "Let's go to Mr. Alvarez's identification of Jennifer Witt. Now, I'm not saying he didn't positively identify Mrs. Witt — he did that. I'll ask you, though, to consider how he could be so positive when he admits that he never saw her face. That's a hell of a trick."
Villars frowned at the mild profanity but — again surprisingly — let Freeman continue uninterrupted.
"Next, since it made such an impression on the prosecution when this came up, let's take a minute to talk about Mrs. Wi
tt's alleged intimate relationship with her psychiatrist. Dr. Lightner, under oath, has denied it. Now you may be skeptical, but remember that Inspector Terrell's opinion that they were having an affair was stricken as speculation. Which means that, as a matter of law, this alleged relationship has not at all been proved. Has anything proved that Mrs. Witt and her psychiatrist were intimate at any time? The answer, again, is no." He paused, lowering his voice. "No. Nothing." And after the interview with Lightner, Freeman could assert this with conviction.
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 spoor or other magical substance — in the local salt-tinged 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 Franciso 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 best 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 alternate 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, he 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 blonde 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 mouth full of thumb tacks.
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 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 out over Powell. "Oh? Why didn't you think they were?"
"I'm not sure. I guess that 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 think 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 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.
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