The 13th Juror

29

"They're shooting themselves in the foot on Ned. You notice Powell said little about it in his opening, especially, didn't even put Jennifer in the county when he died, much less the room."

Freeman chewed on his sandwich – a thick fistful of dry Italian salami on a sourdough roll. "Villars should have bought my 995." This was the motion he had filed before the trial, asserting that there was not sufficient evidence in the Ned situation to convict, which Villars had denied. "Unless they've got some big surprise, this one can't fly."

It was the lunch recess. They had cabbed up to the office on Sutter and were sitting on benches in the small brick-and-glass enclosed garden just outside the conference room. Above them, in the aperture formed by the surrounding buildings, the sky burned a deep blue. Indian summer, San Francisco's finest season.

Hardy picked at the bread of his sandwich, threw it in the direction of some sparrows foraging in the low shrubbery.

"You with us?" Freeman asked.

"Sure." Hardy flicked another crumb. "Just thinking."

"About the case?"

Hardy shrugged.

"You don't have to tell me, but are things all right with you? You doing okay? Getting enough sleep? The first days of these trials can be tough."

Leaning forward, Hardy let out a long breath. "I don't know what's going on at home, David. It feels like I'm losing my wife."

"Literally?"

"I don't know. Maybe not."

"But maybe so?"

Hardy stood up, crossed the small opening, stared at blank brick. Without turning around he said, "Something's happened the last couple of months. I don't think it's the trial, all this preparation. I don't know what it is, but it scares me to death."

"You ask her?"

"Couple of hundred times, one way or the other."

"And nothing?"

Hardy shrugged, finally turned. "Not much. Not enough. We've got this tradition where we go out on Wednesday nights. Date night. Or we had it 'til a month ago."

The birds were chirping over the crumbs and Freeman broke off a bit of his bread and tossed it across the patio. "Something happen a month ago?"

"I wish it had. I came home one night, thinking we were going out, and she's in a nightgown reading. She tells me I ought to go out by myself, shoot some darts. She's just tired."

"Maybe she was tired?"

"Time was she'd be tired on a Wednesday night, we'd grab a blanket, go out to the beach, take a nap. This date night idea was something we'd decided to do, tired or not, kids or not. The marriage needed it. We need it for ourselves."

Freeman contemplated his sandwich. "How old are your kids?"

"Two and almost one, but it's not that." At the skeptical look, Hardy said, "I don't think it's that. You think it is?"

"I barely know Frannie, Diz. But she wouldn't be the first woman to decide her kids needed her more than her husband. Priorities change."

"Well, they haven't changed with me."

Freeman allowed himself a smile. "Life's unfair, like JFK said. If only we could find somebody to sue." He shifted on the bench, popped the last of his sandwich. "Does she think you need her?"

"Come on, David. Need? Who knows need? I love her and I think she knows that."

"I don't mean to sound presumptuous, but your kids know need. Frannie knows need."

"Well, hell, I need her, too. I mean, we're adults, though. We've both got things we've got to do. I've got this trial. She's got the kids. What are we supposed to do? That's what date night was supposed to be for – to keep us connected."

"It doesn't sound like you're too connected. You just said it – you've got this trial, she's got the kids."

Hands in his pockets, Hardy found himself pacing. Arguing with David Freeman, proving his point that Frannie – perhaps – shouldn't feel what she was feeling, whatever it was, didn't alter the fact that something pretty fundamental seemed to have changed between them, some balance had shifted.

Maybe what Freeman had implied was true – that she didn't feel as though he needed her so much anymore. He had to admit he wasn't giving her much sign of it – leaving for work early, getting home late, drafting motions, doing research, following up his investigations, reviewing files on weekends.

As far as that went, he didn’t feel like she was needing him much either. She was doing her jobs, caring for the children, taking care of the home. They were, he believed, committed to each other, and that had to be one of the main ingredients of what they both called adult love.

"I'd surprise her." Freeman had come up next to him and put a hand on his shoulder. "Break up the routine. Maybe she's just burned out. Maybe she sees you're not there for her and she's afraid you won't be and she's pulling away."

"But I am there. This trial's just starting. What does she expect?"

"Maybe the question is what does she need?" Freeman patted his shoulder, opening the glass door back into the conference room. "Let's get back to court. Her Honor frowns on tardiness."

John Strout, the coroner for the City and County of San Francisco, was already a familiar figure to Hardy and every other professional in the courtroom. An authority with a national reputation, the drawling, well-respected medical examiner had appeared at almost every trial, grand jury and preliminary hearing that involved a murder in San Francisco – perhaps once a week for the past thirteen years – and now he sat his lanky frame down in the witness box, comfortable and relaxed.

Powell, showing no sign of post-lunch slump, combed his white mane with his fingers and greeted Strout genially, old friends, for the jury's benefit. Then he got right to it, preempting what Hardy thought would be Freeman's tack on cross.

"Dr. Strout, did you do the initial autopsy on Ned Hollis back in 1984?"

"Yes, I did."

"And what were your findings at that time?"

Strout backed his chair up in the witness box and crossed his legs, his broad and open face creased in a smile. "We ran an A scan and returned with a finding of accidental death due to an overdose of cocaine mixed with alcohol."

"An A scan? Would you explain to the jury what that is?"

Strout leaned forward and gave a two-minute explanation – most poisons and/or volatile compounds were found in the A scan, and it was cheapest and quickest. If a cause-of-death could be found at the A level – without a police report indicating a suspicion of foul play – the scanning tended to stop there.

"And the A scan did find traces of cocaine and alcohol in Mr. Hollis' system, is that it?"

Strout frowned. Making it simple for the jury wasn't his job. He was already on the record as having missed the true cause of death in this case, and he wanted to keep it precise. "There was a potentially lethal level of coca-ethylene, which gets a little technical, but basically it is the by-product when cocaine and alcohol mix in the blood."

"And when you determined the presence of this coca-ethylene, you stopped the autopsy?"

"Well, no. But we stopped looking so hard for a cause-of-death. A man's got a knife sticking out of his head, we don't necessarily go looking for a coincidental heart attack." A brush of low laughter. "But we didn’t complete the autopsy with that finding. In fact, the lab tests and the physical examination are related but separate procedures."

Strout explained about blood samples being sent off to the lab while the autopsy proper concerned itself with the body and its organs. "When we get back the lab results, we check to see if anything we've discovered in the physical examination might throw some new light on the lab's finding or vice-versa."

"And in this case?"

"Well, we found the coca-ethylene. There weren't any appreciable amounts or physical indications of the presence of barbiturates or alkaloids. So we had a probable cause of death at the A level and stopped there."

Powell nodded to Strout, then turned first to the jury, then back to the defense table, making eye contact with Jennifer again. Hardy glanced at her out of the side of his eye. Was she smiling at her prosecutor? He touched her arm, and she stiffened, her face now a mask.

The direct examination continued without any surprises. Both prosecution and defense counsel might have stipulated to all of this forensic detail – the facts were largely undisputed – but neither Powell or Freeman had shown any inclination to do so. They had their reasons. Powell wanted to make the long-ago death of Jennifer's first husband real to the jury. He might have been dead a long time now, but when he died he'd been a healthy twenty-six-year-old man. Powell wanted the jury to know that, to get a sense of a young life snuffed out, to watch his accused killer react to it all. When he'd finished outlining the C scan and discovery of the concentration of atropine in Ned's left thigh, Powell led Strout into an area that did not strictly concern his findings in the lab or at autopsy.

"Now, Dr. Strout, atropine is a prescription drug, is it not? It's not available over the counter?"

Strout agreed.

"And what is it's principle use?"

"It's used in anesthesia and to inhibit the flow of saliva." Strout was good at including everybody. He smiled all around, smooth and comfortable.

"Were you surprised when you found it in the scan you've described?"

"Objection." Freeman was up like a shot, and almost as quickly, without discussion, Villars sustained him. Powell remained impassive.

"Dr. Strout, to your knowledge, does atropine get much use as a recreational drug?"

Hardy could see Freeman getting poised to object again, but he sat back, seemingly content to let Powell continue with this line of questioning.

"If it is, it's not a common one."

"It doesn't produce a so-called high, or anything like that?"

Again, Hardy glanced over at Freeman, Powell was leading the witness all over the place, and Freeman was sitting back in his chair, lips pursed, listening.

"No."

"So if a person were an habitual drug user, and looking to get high, he or she would not-"

Here, finally, Freeman raised a hand, keeping his voice low. "Your Honor? Speculation."

Again he was sustained. Powell smiled, palms out, apologized in his gentlemanly way and nodded to both the judge and the doctor. "That's all, then. Thank you, Dr. Strout. Your witness, Mr. Freeman."

The rumpled defense attorney, no less genial than Powell had been, although – Hardy thought – more believable in this guise, walked to where Powell had been standing, then moved three steps closer to the witness box, lifting one hand in a casual unspoken greeting to Strout, telling the jury by gesture that he and Strout, too, were professional colleagues. Just because he was with the defense, it didn’t mean he was with the bad guys, or was one of them.

"This exhumation business… I don't suppose it's much fun, is it, Doctor?"

Strout was still relaxed. There had been trials where he had testified for the better part of a week. He looked on his witness time as a break from his work in the morgue. He spread his hands. "It's part of the job. Sometimes it gets pretty interesting."

"Was this, the Ned Hollis exhumation, one of the particularly interesting ones?"

Strout thought for a moment, then added, "I'd have to say it was."

"And can you tell the jury why that was?"

Strout liked this, the opportunity to sit back and chat. "Well, in any autopsy the search for a cause of death is a bit of a puzzle. As I've explained earlier, we run laboratory scans for various substances and examine the body, hoping we can point at something when we're finished. In a case where someone has died a long time ago, the puzzle can get complicated. I guess that's what I mean by interesting."

Freeman, apparently fascinated, had now wandered closer to the jury box. "What kind of complications, Doctor?"

"Well, the body decays, for one. Certain substances break down – chemically, I mean – or turn into something else, or disappear entirely. Evaporate. Over time, of course, eventually you can lose almost everything."

"And had that happened with Mr. Hollis?"

"Well, to some degree, yes."

"And yet this was a particularly interesting… puzzle, I believe you called it."

The medical examiner nodded. "That's because we believed we had another poison and we had to find it – not just the substance itself, but how had gotten into the body." Strout, the ideal witness, was forward in his chair again, addressing the jury directly. "During the first autopsy," he explained, "we had, of course, examined stomach contents and so on, but now we were looking to see if we missed anything the first time, so we tried again. But there wasn't much there. Although the scan found the initial trace of atropine, we couldn't get any concentration approaching a lethal dose."

"And your next step?"

Hardy glanced at the jury. This was gruesome stuff, no one was sleeping. Strout continued, showing enthusiasm for his work. "Now here's where the puzzle gets interesting. If there's been a recent death, you might find some needle marks, bruises and so on, but here we took samples from various locations, hoping to find a concentration, and we got lucky."

"How was that?"

Strout got technical on some muscle names and so on, but Freeman brought him back, making it clear that the injection had gone in two-thirds up the front of the left thigh.

"You're sure it was the front of the thigh? It could not have seeped through, so to speak, from the back?"

Strout was certain. "There's no chance of that. The muscles aren't connected." More medical detail, but gradually the picture came out – the lethal injection had been administered to the upper thigh.

To Hardy, it seemed like a long journey to get to something they already knew. Until Freeman asked, "This location on the thigh, could someone self-administer an injection there?"

Unflappable and friendly, Strout said of course.

"Was there anything about your examination that indicated that the injection had not been self-administered?"

"Such as?"

"I don't know. Maybe a scratch where he might have tried to fight off the injection. Anything at all?"

Strout thought. "After all this time, no, nothing."

Freeman went back to the exhibit table and lifted People's Exhibit 5, the original autopsy report. "Did you notice anything nine years ago, Doctor, that would have argued against Mr. Hollis giving himself the shot?"

Perusing the page, Strout handed it back. "No. But, of course, there were tracks – needle marks."

"There were needle marks? And where were these, Doctor?"

"On his inner arms."

"Consistent with where a drug user might inject himself?"

"Yes."

"Did you notice any needle marks on his thighs?"

Again, Strout glanced down at People's Exhibit 5, his early autopsy diagram. "No, not that I noted here."

Across the room, Hardy saw Powell sitting, his hands folded in front of him, his head down. He was getting killed and he knew it. Freeman, with half a losing point – the needle marks on the thigh – wasn't even ready to concede that. He'd come back nearly to the edge of the witness box during the rapid-fire questions, and now he moved back to the center of the room. "But it's possible, is it not, Doctor, that you might have missed even a recent needle mark?"

Nodding amiably, the doctor, relentlessly honest, went him one better. "Not only could I, Mr. Freeman, it seems likely I did. The injection went in his thigh. It's the only way the atropine could have concentrated itself there. Needle marks are notoriously difficult to locate and catalogue. Autopsies miss them." Strout spread his hands one last time. "It happens," he said.