The 13th Juror

31

No one seemed to know where the storm came from, but rain slashed almost horizontally in gusts around Bryant Street, the temperature was in the low fifties and the gray paint on the Hall of Justice seemed a bruised and burnished blue as Hardy ran, raincoat flapping, from his parking space to the courthouse steps.

It was 12:42 when he entered the building. He knew they would be at recess, which was how he had planned it. He wasn't going directly to Villars' department anyway.

Freeman and Jennifer were having lunch in an abandoned office back behind the courtrooms.

Hardy nodded at the bailiff standing watch outside the door, then waited, getting his breathing under control from the run through the rain. He watched them through the wire-lined glass window in the door, talking, chatting really, at opposite sides of a pocked old green metal desk. He pushed open the door.

Freeman, his mouth full, raised a hand. "Greetings. We're killing 'em, Diz. Their feet are up, I swear to God."

Jennifer was pushing some three-bean salad around her white Styrofoam tray with a white plastic fork. He was struck again by the figure she cut – demure yet sophisticated, innocent and unattainable. It was as if she were Freeman's creation now – clay-molded by an artist.

Hardy had unbuttoned his dripping trenchcoat and now pulled a chair around backward and dropped himself over it. A gust delivered a fresh torrent of rain, slapping at the window in front of them hard enough to make everybody stop and look.

"More good news. The drought's over again." Freeman shoveled some tubular pasta in a glutinous red sauce. He mopped his mouth with an already spotted napkin. "Hey, Diz, listen up. I'm kicking some serious tail in there. I'm thinking about what I'm going to say in there." He pointed back behind him to the courtroom. "That's where I live, you hear me? You want some advice? No? I don't care, I'll give it to you anyway. You want to give good trial, that's where you'll live, too." More milk, another swipe of napkin. "It doesn't get in there, Diz, it doesn't count. And that's the truth. The truth is also we're winning right now."

A long moment went by while everyone looked at one another. More rain got flung against the window. Over downtown, lightning arced into a rod on a hotel rooftop, and seconds later the crash of thunder rolled through the room.

Jennifer, kitty-corner to him, put her manicured hand over his. One part of him registered that it was cool and dry, so he thought it was odd that it seemed to burn where she touched him.

"Jennifer never admitted to Harlan Poole that Ned was beating her. In fact, she always denied it. His opinion that she was being battered is totally speculative," Freeman said. "He can say he and Jennifer were having an affair. He can say he had atropine in his office. Period. I filed an early 1118 yestereday after we crucified Strout. And Poole is turning into a bigger disaster than Strout."

The 1118 is a motion for a directed verdict of acquittal, by which the judge is asked to rule that no reasonable jury could convict the defendant, that as a matter of law there isn't sufficient evidence to prove guilt. If the motion was granted, the charge would be dismissed and could never be retried.

"I'd bet Villars grants it after the recess." Freeman's eyes seemed to glow. He put a hand on Hardy's other sleeve. "He maybe can chew gum and walk, but I don't think Powell can run a campaign and a trial at the same time. This thing's gong south for him."

The bailiff knocked and entered. Judge Villars was coming out of her chambers. Trial was going back into session.

Hardy sat listening as Powell tried to find some wedge to introduce Harlan Poole's testimony.

The dentist was a wreck. It was hard to imagine that this portly, balding, bespectacled, sweating man had ever been Jennifer's lover. Also, the "low profile" that Terrell had promised him had turned out to be impossible to maintain. Like it or not, and he obviously hated it, Poole was a central figure in a capital murder trial. From his eyes, the role was playing havoc with his life.

"Dr. Poole." Powell was recovering from another sustained objection. Freeman had jumped up as he liked to do, and Villars criticized Powell for again referring to the fact that Ned had beaten Jennifer, which they hadn't been able to establish because it was hearsay.

In his frustration, Powell was walking in circles, facing the bench, then the jury, back to the defense table, then his own table, all the way back around to Poole. "Dr. Poole," he said, "you have testified that you were intimate with the defendant?"

Poole studied the ceiling, avoiding his wife in the gallery. He wiped a handkerchief across his eyebrows. "Yes."

"During you intimate moments did you have occasion to see the defendant naked?"

"Your Honor! Objection!"

But Powell had given this some thought. "Your Honor, at your insistence, we have to take this testimony out of the realm of hearsay. This is not a direction I would have chosen to go, but it is relevant and it is not hearsay."

Villars had her mask on. Eyes straight ahead, unmoving, she could have been a mannequin. "Let's have counsel up here."

Hardy rose along with Freeman. No one seemed to object, or even notice. They were before Villars, looking up.

Villars spoke quietly. "I'm not sure I'm going along with the relevance, Mr. Powell. What does Mrs. Witt's nakedness have to do with the alleged killing of her husband?"

Freeman, still feeling he was on a roll, incautiously spoke right up. "It doesn't."

A mistake. Villars glared. "When I want your answer or argument, Mr. Freeman, I'll address you, is that clear?" Without waiting for his response, she went back to the prosecutor. "Mr. Powell?"

"Your Honor, it speaks to motivation. We know that her husband was beating her and that-"

"Wait a minute. Up to now all I've heard about is the insurance and an affair…"

Hardy suddenly noticed that the court reporter wasn't there. He surprised himself by speaking up. "Excuse me, Your Honor, is this conference to go on the record?" The court reporter was supposed to take everything. Nothing in a capital case was off the record.

The judge seemed to realize for the first time that Hardy was even there. The look of surprise gave way to her usual intimidating glare, but Hardy didn't back down. "Perhaps we could go to chambers?"

"We just got out here." Extremely displeased, she frowned down at the three men who were waiting on her. "What's your point, Mr. Hardy?"

"We don't have to go to chambers, Your Honor." Powell was Mr. Conciliatory. "I'm sure we can settle this right here."

Villars straightened her back, drew in a quick breath. "I'm getting pretty damn tired of asking one person a question and getting an answer from another one. I ask Mr. Powell a question, Mr. Freeman answers me. I ask Mr. Hardy a question, Mr. Powell answers me. Now everybody listen up. I'm asking Mr. Hardy. You want this conference in chambers?"

"Yes, ma'am."

She leveled a finger at him. "Yes, Your Honor," she corrected him, "not 'yes, ma'am'."

"Yes, Your Honor. I'm sorry."

Villars was moving papers around in front of her on the bench. She lowered her head, shaking it back and forth. "This really pisses me off," she whispered to no one.

She stood up. "The court reporter will accompany us to chambers. We're taking a short recess. Dr. Poole, you can stand down 'til we get back. It shouldn't take too long. Or you can stay where you are."

She led the parade out.

Her chambers were not much more impressive than the cubicles used by the Assistant DAs. The room itself was bigger and had its private bathroom and a sitting area away from the oak flat-topped desk, but even with two nice throw rugs and some framed prints the place had that public-building feel.

Hardy was now facing the wrath of Villars. "All right, Mr. Hardy, we're on the record in chambers. What are we in chambers for, if you don't mind?"

"Mr. Powell was discussing the relevance of-"

"I know what he was doing."

Hardy stepped back. "Okay, then, Your Honor, if he'd like to continue his argument. It might come up in the penalty phase, if there is one."

Villars reminded him of an angry bird, head tilted to one side, ready to peck his eyes out. She shifted her gaze to the prosector, who was sitting in one of the leather chairs. "All right, Mr. Powell, let's hear why Mrs. Witt's nakedness is relevant."

"Your Honor, Dr. Poole's testimony will give direct evidence that Ned Hollis used to beat Jennifer regularly, which of course would have given her another reason to have killed him. Surely that's relevant."

But also a point in mitigation, Hardy thought.

"You're saying this is a burning-bed case?"

"It may have those elements. It's a question of fact and we ought to let the jury decide."

Villars shook her head. "You realize you are introducing BWS here?" Referring to the battered-woman syndrome. "Do you have any evidence that what's-his-name, the second husband…?"

"Larry?"

"… that Larry was beating her, too? Is that your argument?"

"Excuse me, Your Honor." Freeman wanted to get onto the boards. "We're not claiming BWS. She is not saying she had a reason – we're not saying she killed them because they beat her and they deserved it. We're saying she did not kill them at all."

Villars pushed herself up until she was sitting on the edge of her desk.

Hardy glanced at his partner. Freeman was leaning against one of the bookshelves, seemingly at ease arguing the position that Jennifer had not killed anybody for any reason.

Villars, her arms straight down on either side, palms flat on the desk, stared through the one window at the driving rain outside. "So I assume, Mr. Powell, that we're going to hear that Mrs. Witt had bruises, black and blue marks and so on, all over her body?"

"That's right, Your Honor."

"And the fact that Dr. Poole personally saw them takes this out of the realm of hearsay?"

Powell, seeing where she was going with this, began to squirm. The leather chair squeaked as he shifted. Still, he persisted. "The bruises themselves, Your Honor, are admissible. Dr. Poole saw them himself."

"And you would then ask the jury to somehow connect these marks on Mrs. Witt's body to her husband?"

"Your Honor, the truth is that her first husband, Ned, beat her. The implication can be drawn-"

Freeman stepped away from the bookcase. "That's not true, Dean." He turned to the judge. "Pardon me, Your Honor, but my client has consistently denied that she has been a battered wife, or that this will be any part of her defense. The jury cannot draw any implication at all from bruises that may have been caused by anything."

"Oh, get serious, David." Powell was halfway out of his chair. "You know as well as I do that-"

"Gentlemen! Let me remind you that we are on the record here, and that any remarks are to be made to the court." She wasn't waiting for a response but moved off the edge of the desk, facing both men. "Mr. Powell, from what I've seen here so far, you've got an evidence problem of substantial proportions. Are you planning to call somebody who's going to give us any testimony about the day Mr. Hollis died, where Mrs. Witt was on that day, anyone who saw her take the alleged atropine out of Dr. Poole's alleged drawer, or the alleged syringe, or who saw her dump it afterward?"

Powell was standing, hands in his pockets, trying to affect a casual posture. Hardy wasn't convinced and doubted anyone else was. "Your Honor, with the insurance, the pattern here-"

Villars held up her hand. "I asked you a simple yes or no question. Are you calling anybody to address any of the issues I just raised?"

"Your Honor, I-"

"Yes or no, damn it." She looked over to the court reporter. "Adrienne, strike that profanity." Then, back to Powell: "Yes or no, Mr. Powell."

A faraway rumble of thunder rolled through the room.

"Not to those specific issues. No, Your Honor."

"Are there any specific issues you'd like to preview for us that you can think of that would fall more or less into the category of evidence and not hearsay? Take your time."

Powell sat back down, leaning forward, his forearms on his thighs. "Lieutenant Batiste, who was the investigating officer for Ned Hollis' death, is scheduled to testify."

"Is this the same Lieutenant Batiste who did not see fit to arrest Mrs. Witt for murder nine years ago, presumably because there wasn't sufficient evidence to bring charges?"

Powell was combing his hair straight back with his hands. "We have several other witnesses, Your Honor."

"I'm sure you do, but are any of them going to say anything that might be remotely admissible? You know the law as well as I do, you tell me."

In the middle of his worst nightmare, Powell came up for the third time. "Your Honor, after much deliberation and at some expense, the District Attorney's office decided to exhume Ned Hollis and run scans for poisons. We found the atropine, which is not a recreational drug, in a lethal dose."

"Your Honor," Freeman broke in, "their own witness says Hollis experimented with drugs. He wanted to see if atropine could get him high, that's all."

Villars ignored Freeman's interruption, her eyes on the prosecutor. "As you know, Mr. Powell, the point is not whether you think it, which I believe you do, but whether you can prove it – beyond a reasonable doubt – that Ned Hollis was murdered. Now, what I see is an insurance policy that was used for its original purpose, to pay off the house. I see a recreational-drug user experimenting with a dangerous drug. And here you are waffling on your motive – if Mrs. Witt didn't kill her husband for the money, then she killed him because he was allegedly beating her. Do you have any reports from doctors documenting these beatings? Did she ever report them to the police?"

There was, finally, nothing Powell could say.

Nodding, Villars crossed her arms and walked around behind her desk and stood there a moment. Everyone waited. The rain beat against the window and the clicking of the court reporter's keys stopped. Villars leaned over her chair and picked up, then dropped, four or five stapled pages of legal brief.

She shook her head, taking in the assemblage. "I'm going to be taking a moment to consider this situation. I'd like you all to return here to chambers in fifteen minutes."

Back in her chambers, Villars told Freeman and Hardy that she was prepared to declare a mistrial on Ned Hollis if they wanted it. Of course, in that case, Jennifer could – and would – be retried for the Witt murders only.

Obviously, the jury had been prejudiced – they had heard that the DA, at least, thought that Jennifer had killed her first husband. Also obviously, the jury must have a poor impression of Powell, who was bringing charges that "no reasonable juror" could believe.

Freeman and Hardy wrestled about who got hurt more – the prosecution or the defense. In the end, though, it was Jennifer who made the decision – she did not want to sit in jail while they set a new trial date and started all over again.

They put it all on the record with Villars.

"Your Honor," Freeman said, "I believe the grounds for a mistrial wee caused by prosecutorial misconduct that has violated my client's due-process rights. I believe the case must be dismissed in its entirety and that all further prosecution is barred because Mrs. Witt has been placed once in jeopardy."

Villars hated this. "Nice try, Mr. Freeman. Are you asking for a mistrial or not? If you ask for it, the defendant can be retried. If you don't request it I am not granting it on my own motion."

Freeman, not really expecting to have it both ways, was satisfied nonetheless. But he kept a straight face. "In that case, Your Honor, although I believe the trial has been fatally tainted, we elect to proceed. I have explained the situation to Mrs. Witt, and she elects to go forward. Isn't that true, Jennifer?"

Jennifer looked up. "Yes."

They all trooped back into the courtroom, where Villars announced to the jury that she had decided to grant defense counsel's 1118 motion regarding the murder of Ned Hollis – there wasn't enough evidence as a matter of law to convict Jennifer Witt of killing her first husband. They would be moving on to the next phase of the trial on Monday, but until then, Villars added, why didn't the jury go home early and get a weekend of rest?

Hardy shucked himself out of his wet raincoat, tossed it to the other end of the seat and at the edge of the banquette at Lou's. Freeman slid in opposite him.

It was not yet four o'clock, a dark early afternoon. At the bar Lou was playing a quiet game of liar's dice with one of the regulars; his wife watched a soap opera on the television up in the corner. They were the only other people in the place.

Coffee arrived and Hardy curled his fingers around the mug to warm them. Freeman took his time, adding two spoonfuls of sugar, pouring some cream. He stirred, sipped, added more cream, stirred again.

"Diz, I've got something to tell you and you're not going to like it."

John Lescroart

Hardy 04 – 13th Juror, The

Hardy was trying to keep his hands from shaking. "How long have you known this?"

Freeman studied his own nails. "Longer than you'd like to know, Diz."

Hardy nodded. What could he do? Freeman had just told him that Jennifer had, in fact, killed her first husband, Ned. She'd shot him up with atropine. Just as the prosecution had contended. And Freeman had known all along.

"You know, you are a true son of a bitch," he said.

The older man nodded. "I can understand why you'd think so, but I didn't really think-"

"Fuck that, David. You didn't really think? Give me a break."

"Diz-"

"No. No, Diz anything. She told you?"

Freeman nodded.

"And you could go on with this? This incredible charade?"

"Of course."

The blood was pumping. "'Of course', even. I really love that. Not just 'sure, Diz', but 'of course'."

"She's a client. Of course she's guilty. We're supposed to get her off. And, I might add, we just did."

"We just did. Jesus. Give us a medal, would you."

"It bothers you, does it?"

Hardy lifted his tired eyes. "Bothers me? I think that's fair, David. More than fair, even just, if the word has any meaning for you." He took a long pull at his beer. "But as a matter of interest, since I'm punting out of this case, did she kill Larry, too? And Matt even? What else have you known all along?"

"No."

"No, what?"

"No, I don't think she killed Larry. Or Matt."

"You don't think so?"

"Diz, I said no."

"No, David, you said you didn't think so, which, I need hardly tell you, is fairly open to interpretation, as if you didn’t know."

Freeman was picking at the frayed wrist seams on his shirt. "You can't punt out. What do you mean? Quit? Now?"

Hardy gave him a long look. "I know you're not much into popular culture, David, but yes, punt means quit. I'm out of here. I'm off the case, okay? Dropping it. You think I could stick around and be part of this? I get a woman off when she murdered her husband? She admits it. Is that supposed to make me feel good? Why do you tell me now? You think the irony appeals to me, is that it?"

"No, I don't think that."

Hardy waited, his breathing labored.

Freeman picked some more at his shirt ends. "It was so complicated, Diz. And…" – he seemed, uncharacteristically, at a loss for words – "…and I valued you. I didn't want to lose you, and I know I would have."

Flattery. Bullshit. Hardy's nose was getting refined.

He sucked the rest of his beer. "Well, David, the hell with you. And the hell with her."

Rising, he slammed the bottle down on the table and headed for the door.

Freeman, forgetting his own drink, was up after him, out into the rain.

"I want you to just listen to her, I want you to hear it for yourself." Freeman had followed Hardy out to his car, had gotten himself into the passenger seat and now they sat, the rain pelting on the roof, the windows steamed, in the public lot across from the Hall.

Hardy shook his head in disbelief. "What's she going to say? What can she possibly say?"