The 13th Juror

33

He didn't know what he was doing, driving in the morning rain out California to Miz Carter's, then changing his mind, turning down through Golden Gate Park, avoiding the tree limbs that littered Kennedy Drive, knocked down by the force of the storm. He didn't really know where he was going. Maybe his brain had shut down from lack of sleep.

It all had come down to whether he believed her. This time. Even though he knew she had lied to him – about damn near everything – from the beginning. Could he still believe her?

He thought he did. That was what had kept him awake, tossing next to Frannie until the cloud's gray became visible out their bedroom window.

He had told Frannie that Jennifer's story was flawed, but the truth was that he found it credible. He'd been around and around on it, and every time it came up more logically sound.

Jennifer had to kill Ned. From her perspective, it was pure self-defense. She truly believed he was going to kill her, and why wouldn't she?

She'd tried to run away and he'd tracked her down. Then she'd told him she was going to leave and he'd beaten her almost to death, violated her with the blunt end of a kitchen knife, killed her cat as an obvious, classic threat, and threatened her with her own death if she did anything to stop the rampage.

He had read everything Lightner had given him, plus twenty or thirty other articles and briefs on the subject. Battered women did not feel like they could get away. They were forever trapped in a situation from which they could literally neither run nor hide, and which would someday, in all probability, kill them.

Hardy believed Freeman could prove that Jennifer taking Ned's life had been justifiable, a sometimes valid form of self-defense that the courts had begun to recognize. Even with Judge Villars, even with the legislature failing to pass a law codifying BWS as a defense. Hardy was fairly confident they could get Jennifer off. Certainly, as he had pointed out, no jury in the State of California would call for the death penalty.

Jennifer was not stupid. She knew that if she agreed to assert the battered-woman syndrome, then her life, at least, would be removed from the equation – it would no longer be a capital case.

So the recurring question was: Why wouldn't she plead to it? Her reason was that it implied a defense against guilt, and she said she had no reason for a defense against something she hadn't done.

And she could not very well plead to one murder and not the other. No one would believe her. Powell would laugh at it. A jury would be insulted. No judge would be sympathetic. Yet Hardy found himself believing it. Jennifer Witt did not kill her son, she had not been there when he had been killed, she had known nothing about it. Matt rang true, and if he bought that – which was not at all the same as believing a jury would buy it – then working backward, all the other apparent duplicity made a perverse kind of sense.

She could not admit to any similarities, especially in so far as battery, between her lives with Ned and with Larry, especially once they'd gotten as far as trial.

There was no evidence that she had been beaten, and if they admitted at trial that she had been, in the jury's mind that would only make it more likely that she had killed both of her husbands. So her position had to be that no one had ever abused her. It was the only story that worked… And of course, truthful or not, David Freeman the lawyer gobbled it up and made it his own.

There was a pause in the downpour. Hardy was wearing tennis shoes, jeans and a green waterproof jacket. He got out of the car, and from where he stood, near the top of Olympia up the block from Jennifer's house, he could see a band of blue widening at the horizon. Even this early in the morning, and it was before seven, the air was strangely humid and heavy, laden with the smell of eucalyptus.

He didn't know why he had driven out here, or what, if anything, he expected to find or accomplish. Light-headed, he walked from his car up past the Witt house to the edge of the grove surrounding Twin Peaks, leading up to Sutro Tower, the source of the eucalyptus scent. A mother deer and her two fawns were rooting through the foliage there, fifty or sixty feet back into the trees.

The deer bolted, startled, disappearing into the woods. In the deep shade, Hardy blinked his stinging eyes, trying to clear his vision, stunned to see Jennifer Witt in a bright blue jogging outfit break from the cover of the trees and run toward him on the trail, then past him – no, close up it wasn't, of course, her – out to the street, where whoever it was turned down Olympia.

As he stood there, drizzle began to fall again and he ran, following her footsteps, around the corner and down the long block to his car. The woman, jogging faster than Hardy could sprint, had turned downhill on Clarendon.

The car spun on the wet pavement, then straightened. Hardy took the corner at Olympia and hydroplaned again, his wheels this time bouncing off the concrete corner-divider before he got the car under control again.

He was alongside the woman, slowing down and honking his horn, motioning for her to pull over. She flipped him off, stole a glance at her watch and kept going.

Hardy slowed, rolled down his passenger window and gunned it up to her again, honking. "I need help," he called out to her. Driving ahead another hundred yards, he pulled to the curb, throwing open his door and getting out. He held his hands wide, spread out at shoulder height, offering no threat. The woman slowed abruptly, stopping fifty feet up the street. The rain started coming in sheets.

"What?" she gasped. "Can't you see I'm trying to run?" Hardy tooka step toward her and she put her hand to her hip. "I've got mace here on my belt and I'll use it."

"I need to ask you a question."

A car passed going the other direction, slowed to look, then sped up the street.

"A question?" She shook her head in disbelief. "Who the hell are you? Leave me alone."

Hardy wished he could try the old badge trick but he didn't carry it as a matter of course. It was at home, there if he decided he might need to use it.

"I'm going by," the woman said. "You'd better leave me some room." She was, in fact, holding what looked like a spray can in her hand and Hardy had no doubt she'd use it.

He had to talk fast, find some lever. She was coming toward him cautiously. "You ever hear of Jennifer Witt? I'm her lawyer."

"Good for you. I'm a runner."

She turned it on, going by the other side of his car. There wasn't so much as a glance back as she flew down the street, around a curve and out of his sight.

Back in his car, Hardy consoled himself that it was probably nothing anyway. But then, three blocks later, he realized the truth of what he'd just done – he thought he might have stumbled on a nugget of truth in one of Jennifer's explanations – so he hadn't given up on her.

Jennifer had said she always started out walking for a couple of blocks when she left her house to go jogging. She had insisted that was her routine, and she followed it on the morning of December 28. And somebody else, with a resemblance to her, came running by her house just as some shots were fired. That person stopped, saw nothing, and continued running, right from Jennifer's gate. And was identified as Jennifer by the State's star eyewitness. Anthony Alvarez.

It almost gave him real hope.

Glitsky called after dinner and told them they should turn on the news because David Freeman was on.

Moses and his new wife Susan were over, and everyone was at the front of the house. While Hardy turned on the set, Moses plopped himself on the sofa. "That guy gets more air than a hot-air balloon," he said. Turning around, Hardy said that David Freeman was a hot-air balloon. When it suited him.

The man himself appeared on the screen. Unshaven, hang-dog, his tie askew over his wrinkled shirt, with sleeves partially rolled up – here was a man who'd been working all night and all day on behalf of his client. He was sitting on the edge of the desk in his office, his lawbooks visible behind him – and the sound came up. "… victory but, to be quite candid, I expected it. I have fought from the original arraignment to have this case dismissed for lack of evidence, and, of course, the judge's ruling here corroborates what I've maintained all along – Jennifer Witt is innocent. She did not do these things."

Hardy and Frannie, now sharing their own secret about Ned, exchanged a glance. "He is some piece of work," Hardy whispered.

The young female reporter spoke earnestly into the camera. "And, obviously buoyed by yesterday's victory, Mr. Freeman had some even stonger charges to make."

This was edited tape, and again the sound bite picked up in mid-sentence. Freeman was answering another question. "… there's the political motive. I hate to bring this up, but it's true – Dean Powell is running for Attorney General on a pro-death-penalty ticket. At the same time, you can't have a death penalty just for black men. He needs a case like this, and he needs it right now. If Jennifer Witt hadn't come along he would have had to invent her." Freeman hung his head, genuinely saddened by the flawed nature of humankind. "Unfortunately," he said, "that's essentially what he did."

Suddenly they were back in the newsroom and the anchorwoman was saying to his partner, "Those are some pretty strong accusations, Shel, and we'll be following that trial every day here on Channel 5."

"That's right, Jack." Shel beamed at the camera, filling the screen. "Want to know what happens when three sisters fight over the family dog?"

"Slick segue, Shel," Frannie intoned.

Moses, leaning forward on the couch, shushed his sister, speaking to the TV. "Yeah, three sisters and the family dog. I want to know what happens, I do."

Shel was continuing. "Sounds like a case for Solomon, doesn't it, and it's developing right now down in Daly City. That's up next. Don't go away."

Hardy was up, also talking to the tube, turning it off. "Sorry, Shel, got to go."

Moses jumped up. "Come on, Diz. I'm dying to know about the sisters and their dog."

Susan hit him on the leg. "Pervert."

"How can you do that? Turn of Shel?"

Hardy was moving back to his chair. "Years of training and therapy have helped me here. Why do I get the feeling that Jennifer's trial is going to be getting nasty?"

"It's that amazing sixth sense you have." Frannie rubbed a hand over his arm. "It must have been an awful slow news day."

Susan was smiling and relaxed, leaning against Moses on the couch. "He's your partner, Dismas?"

"Cute, isn't he?"

Moses, cut adrift, moaned that he wanted to know more about the girls and their dog.

"They ate it," Frannie said.

Susan nodded. "Cut it up into little pieces. Fried the ears and served them with Roquefort dressing."

Hardy stood up. "I'd like to go on the record here by saying how nice it is to be among people who are so in tune with the big issues. I'm going to get dessert."

Because of the afternoon nap he'd taken, he wasn't tired. Moses and Susan went home at a little after ten, and Frannie, who would have Vincent's first feeding at one, said she thought she would turn in.

Hardy added a log to the fire in the front room and sat in his chair with a copy of John McPhee's Oranges. He'd barely begun when the telephone rang. He grabbed it halfway through the first ring.

It was Glitsky saying his man Freeman was a star. "Trial by television. It's what makes this country great."

"That and concentrated orange juice." Hardy explained the McPhee connection, knowing that Glitsky, like himself, had a weakness for the obscure fact. "But I sense you didn't call to talk about citrus."

"Normally I would," Abe said, "except I thought you'd want to be the first to know about something else."

Hardy silently counted to five. A log popped in the fire. "I love this game," he said.

"I called the Detail on an unrelated matter about ten minutes ago. They were interviewing a guy down there named Marko something. Ring a bell?"

"No. Should it?"

"I don't know. I thought you might have run across it in your travels. He's saying he killed Larry Witt."

Marko Mellon had not begun watching the news report on Jennifer Witt during the Freeman section, as Hardy and company had. He had watched from the start, when they showed her picture – the one the stations and newspapers had used before she had been charged with the murders – smiling, vivacious.

Marko, a twenty-five-year-old Syrian exchange student at San Francisco State who had been following the trial in a fairly dedicated fashion up to this point, was familiar with, Hardy thought, a surprising amount of facts about the case, so much so that it took police inspectors – one of whom was Walter Terrell – nearly five hours to determine he could not possibly have killed Larry Witt.

His motive for killing Larry, he said, was that he loved Jennifer. As it turned out, his motive for the confession was that he had decided he loved Jennifer from her picture. It was a spiritual connection he was sure they had, and if he confessed she would of course want to meet him, after which they would fall in love, get married, have more babies to make up for Matt. It was a no-lose plan, because eventually they would find out he, Marko, hadn't really done it, and then he'd be free and they could live happily ever after together.

"I don't think he thought the whole thing through." Hardy was talking to Freeman. The storm had passed and there were pink clouds in an early morning gray sky over the Oakland Hills across the Bay. They were by the door to Hardy's car, standing in a deserted Bryant Street outside the Hall of Justice after the decision had been reached that they weren't going to be charging Marko with Larry Witt's murder.

"It staggers me that it took them five hours to come to it," Freeman said. "The boy's got the IQ of a turnip. Of course, then again, some of the inspectors…"

"He did know a lot of details, David. They had to let him cross himself up."

"Rats in mazes know details. That doesn't make them smart. They should have just asked him when his visa runs out."

"Why would they ask them that?"

"You check. Dollars to donuts his visa runs out in the next month or so. He figured he'd get arrested, get to stay longer over here."

"In jail? On a murder charge?"

Freeman shrugged. "You ever been to Syria, Diz?"

Hardy let it go. Freeman might be right. "I saw you tonight on the tube, by the way. I don't think Dean's going to be too pleased."

Freeman waved it off. "It's good press. I'm doing him a favor."

There was a silence between them, a residual tension that banter wasn't going to camouflage.

Hardy pulled open the door to his car and, in the predawn light, asked if he could drop Freeman at his apartment. He'd taken a cab down. The old attorney said no, he'd walk.

"This time of day through this neighborhood? Come on, David, get in."

Freeman slammed his hand on the roof of the car. "Take off, Diz, I'll see you tomorrow."

"David…"

Freeman spread his hands theatrically. "We've been working together long enough, you ought to know by now. I'm bullet-proof."

At sunrise Hardy was still in his car, waiting on Olympia Way as though he were at a stakeout. If the jogger came by again he was going to get a few words with her if he had to sprint alongside her for six blocks breathing Mace.

She did not appear.