The 13th Juror

35

Hardy decided that he should probably swing by Olympia Way and spend an early morning hour going over notes and hoping his phantom jogger would reappear. If she ran by that way even semiregularly there was some chance that she might be useful. The defense would open its case in the next week and he wanted as many "other dudes" as he could for David to pull out of his hat.

Not that, strictly speaking, Hardy's jogger was another dude. Or even a dudette. He had different plans for her – Freeman wouldn't attempt to implicate her in the killings as a possible suspect. But he might be able to use her to discredit the damaging testimony of Anthony Alvarez, the neighbor from across the street. What if he had seen this phantom jogger that morning – and not Jennifer – at the gate? And therefore not in the house. If a question about Alvarez's identification of Jennifer could get planted in the jury's mind, the jogger would be worth putting on the stand.

Sipping some coffee out of a traveling mug, cramped behind the wheel of his Honda just after sunrise, he realized that during the past week, while the focus of the trial had been on the Ned Hollis murder, he should have been preparing overviews on Tom DiStephano and the Romans if Freeman was going to use them as defense witnesses.

But in fact he hadn't spoken to Tom DiStephano since he'd gotten threatened by him and his father a couple of months ago, and Glitsky hadn't seemed particularly inclined to move on finding an alibi for the Romans on December 28. Glitsky might be his friend, but he was first a cop, and a busy cop with other priorities. When the directed verdict of acquittal came in so early on Ned, he realized that time was getting short and he had to have significantly more if Freeman was going to be able to use any of the information he'd gathered on these people.

He'd have to put the needle in Abe – see if he could get him to move on the Romans, and he knew the answer might well be that he couldn’t. He also came across the name Jody Bachman and realized that the Los Angeles attorney had never gotten back to him on Crane amp; Crane and YBMG. These were all areas that would have to be shored up before the defense began its case in earnest.

Yesterday, Monday, they had never gone back in to trial. Villars had evidently gotten herself good and fed up with David Freeman's grandstanding and after repeated warnings on the record had fined him five hundred dollars – privately – for contempt of court. He knew the rules as well as anyone and if he wasn't going to play by them, it was going to get expensive for him in a hurry.

By then it had been late in the afternoon and Villars had sent word out via the bailiff to excuse the jury for the day. On his way to do that he had stopped by the room where Hardy and Jennifer had been talking, told them what had happened, and Hardy had taken the cue and cut out.

He was parked at the corner so that he could see where the jogger had appeared out of the woods the last time. Looking down, going over one of Florence Barbieto's interviews with Walter Terrell, he almost missed her when she emerged again.

Throwing his notes onto the passenger seat, he started the engine in time. Sure enough, she ran down the same route, turning the corner onto Jennifer's street, just flying. Hardy pulled across the street, into the driveway just as she arrived at, cutting her off.

He opened the door and got out, facing her across the roof, smiling. "Hi again."

Today she was wearing maroon shorts and a Boston Marathon T-shirt, a maroon headband, and the can of Mace. Panting, seeing Hardy, she closed her eyes briefly, then opened them. "What's your problem?" she asked, sucking air. "Why don't you leave me alone?"

He really wasn't into ruining this woman's day but he also didn't want to let her get away again. He had a card out, ready, and held it up over the hood of the car. "Just grab this as you run by – would you? – and call me. It might be important. It might even save a woman's life."

She stood there a minute, staring, as though she hadn't heard him. "You're a lawyer? Really?"

"That's right."

"Last time you didn't look much like a lawyer."

He grinned. Clothes make the man. Now he was in one of his suits, on his way to court, a real-life lawyer. "I was in disguise."

She was still breathing hard but more controlled than when she first stopped. Hardy figured that even if he could run as fast as she was going, which he couldn't, if he had come from the Sutro Woods down to here it would take him ten minutes to get his breath back. She was already back to being able to talk without gasping. It was impressive.

She reached over and took the card, glanced at it, then at her watch.

"I don't want to keep you, but if you've got time for one question, we might clear up something right now."

She looked again at her watch, took a deep breath. "What is it?"

"Do you run down this street often?"

"Almost every day. I've got a regular route when I'm working out."

"Not the same time, though?"

She shook her head. "Depends when I wake up, how the morning's going. Why? You been waiting around here?"

"A couple of days, early. So sometimes it's later?"

"Sometimes." She was getting leary again. "This is more than one question."

"Yes. It is. Sorry. How about this one: Do you ever remember running by this house here" – Hardy pointed – "and hearing something like shots, something that might have made you stop for a minute? That's the special one question."

She gave it her attention, breathing normally now. She ran the wristband over her forehead, frowning in concentration. "When would this have been?"

"Last winter, right after Christmas."

She gave it another second, then slowly nodded. "Yes… I do remember that. It was like bang, then bang, right together. They were shots? I think I convinced myself that they were just backfires."

"But you did stop?"

"Just for a minute. I'm on a schedule. I like to keep running. I didn't see anything else, or hear anything. I decided it must have been a backfire so I just kept on."

Hardy stayed where he was, just outside his door on the driver's side. He wasn't about to spook her now. "You mind telling me your name?"

There was a last bit of hesitancy but it gave way. She even half-smiled at him. "Lisa Jennings. This is for real, isn't it?"

"As real as it gets, Ms. Jennings."

Hardy came up the gallery aisle – out of the corner of his eye he saw Terrell in the front row on one side and Lightner on the other – and let himself through the swinging gate at the rail. It was almost eleven and Dean Powell had a diminutive Filipino woman on the stand – Florence Barbieto, Jennifer's next-door neighbor.

Hardy sat down next to Jennifer, touched her arm and whispered, "Jackpot. The woman who started running away in front of your house… I found her."

"Where?"

Hardy didn't get a chance to answer. Villars interrupted Powell's questioning with a tap of her gavel, a glare at Hardy. The message got across. He sat back with a gesture of apology. He didn’t feel like incurring a five-hundred dollar fine, and his information, though useful, could wait.

Powell turned back to his witness. Apparently she hadn't been on the stand very long, they were going over the events of last December 28 and hadn't gotten very far.

"To repeat, Mrs. Barbieto, you heard them fighting?"

"Oh yes. The houses aren't far apart. They were yelling at each other and the boy was crying."

"Could you make out any words?"

Mrs. Barbieto brought her finger to her lips. "No," she said at last, "not that morning." Leaving the implication that on other mornings she had. But Powell knew better than to prod there. Freeman would be up if he did and he'd be right. This was the morning they cared about.

"All right. Now, could you tell us about the events leading up to the shots themselves?"

"Well, I was in my kitchen cutting up chicken for adobo. The kitchen is against the wall by the Witt's house, by the window."

"You were standing by the window?"

"I was cutting at the counter. The window is over the sink. There's another window back a ways, which I had open a crack because of the vinegar."

"The vinegar?"

"For the adobo."

Powell nodded as if he knew what she was talking about. "I see. And so you could hear what was happening next door?"

"But not anymore. They had stopped."

"They had stopped yelling, you mean?"

"Yes."

"And for how long was it relatively quiet over there, next door at the Witts?"

"Not too long. A minute maybe. I put away my coffee, I cleaned the cup and put it in the washing machine"… Hardy had a vision of a washing machine full of porcelain chips, no wonder the damn thing wouldn't work – "then took out the chicken and I was cutting it, and suddenly I heard somebody yell out 'No,' and then this awful noise. It had to be a shot. Still, I was thinking about all the fighting this morning and all the weekend and then there is this noise so I go to the window."

"The one that was open a crack?"

"Yes, that one more in the back. When I get to it I hear another shot. It is so loud, I almost feel it hits me."

Freeman nodded some more, then turned around, his eyes taking in the defense table. Jennifer sat forward, hands clenched on the table in front of her. She met his gaze.

"And then what did you do?"

"Well, there's a chair there, by the window. I sat down, trying to think. I didn't know what to think."

"What could you see from this chair?"

"Some of the hedge, then the side of their house to the back?"

"I'm sorry. Do you mean the side of the house or the back?"

"The side, but you know, in the back. Except nothing happens. I don't see anything for a minute or two, I just sit there, trying to think what to do. Then I think maybe I'd better go out, but maybe I should call my husband, I don’t' know." Mrs. Barbieto was reliving the moment, twisting the fabric of her dress in her hands, squirming in the witness chair. "Then I decided I have to go see. If something is wrong, maybe I can help. It is so quiet now, more quiet than before even when they weren't fighting."

Powell was up close to her, soothing but persistent. "And what did you do then?"

Mrs. Barbieto took a breath. "I went next door and rang the bell. Then I wait and then again I ring. But no one is answering, and I now the noise came from inside the house, just a minute before, so somebody must have been in there. But no one answered."

She was shaking her head, stealing glances at Jennifer, clearly afraid to look at her. Perhaps, to the jury's eyes, afraid of her.

Powell brought her back, repeating the safest question there is in a courtroom. "And what did you do then?"

"I waited another minute, and then nobody came, so I tried the door to unlock it but it wouldn't move, and then I became afraid and ran back to my house and call the 911."

"And what did you do then?"

"I sat down by the front window until the police car came, maybe a couple of minutes. I was afraid to stay outside."

Powell continued to walk her through the next hour or two, after the police car had pulled up, Jennifer's return from her run, the arrival of the homicide team, Mrs. Barbieto's actions and impressions. It was a straightforward narrative that Hardy didn't think was very damaging to Jennifer. After all, someone had been in the house and done the killing – but none of Mrs. Barbieto's testimony necessarily convicted Jennifer. It could still be argued that she hadn't been there.

When Powell turned the witness over to the defense, Freeman didn't get up from his chair. Instead he looked up at the judge and then the witness. "I need one minute, Your Honor, if it please the court."

He sat there, unmoving. He didn't look at his notes. His arms were crossed on the table in front of him. After about ten seconds of silence, a ripple began in the courtroom, people moving in their seats, throats being cleared. Freeman seemed oblivious. Hardy looked over to him; so did Jennifer. The seconds went by.

Powell got up after about half a minute. "Your Honor…"

Villars agreed. She pointed her gavel. "Mr. Freeman, are you going to cross-examine Mrs. Barbieto or not? If you are, please get to it."

That exchange took about ten seconds, and Freeman, at last, began grabbing up his yellow pad as a prop. He still hadn't spoken. Sighing, he moved forward, glancing at his watch. "Now!" he exclaimed. Half the jury jumped, as did the witness.

Freeman circled quickly in front of the bench, taking in the whole room. "That was one minute."

He walked directly up to the witness box and smiled. "Now, Mrs. Barbieto, I'm sorry for that little display and if it startled you, I apologize. But we've got some substantial problems with time in your testimony, and I thought it would be helpful to think about what a minute is."

He was out of line. He wasn't questioning the witness. Villars was about to reprimand him but he went right to work. "You've testified that the yelling stopped at the Witt house quote about a minute unquote before you heard the voice shout 'No,' and then the shot, is that correct?"

Mrs. Barbieto was looking at Freeman as if he were possessed, and she could have been at least half-right. She nodded, yes.

The judge looked over and down at her. "Please use words in your responses. A nod doesn't work."

"I'm sorry," Mrs. Barbieto said. "What was the question again?"

Freeman repeated it, and this time she said that yes, it had been about a minute.

"Just to be very clear on this, during that time you were sitting there drinking your coffee, you heard them yelling across the way at their house?"

"Yes?"

"Right up until you finished your coffee and got up?"

"Maybe not."

"Maybe not?"

"But during. While I was there, yes."

"About a minute before?"

"Yes, about."

"Okay, and during that minute you got up from drinking your coffee – where were you drinking it, by the way?"

"Just by the window, there, by the back."

"All right, by the back window. You took your cup up front to the sink, is that right?"

"Yes."

"And then what?"

"And then I washed it."

"With soap?"

Powell stood up with an objection, Villars overruled him. She might think Freeman was an ass but he was following a visible trail here, and it might even lead somewhere.

"No, I just rinse and put it in the washing machine."

Freeman smiled, but clearly with her, not at her. "I don't mean this as a criticism, Mrs. Barbieto, but do you mean you put the cup in the automatic dishwasher?"

There, see, he wasn't so bad. Mrs. Barbieto smiled, embarrassed. "Yes, I meant the dishwasher."

"All right." Freeman went on to recap what she'd done so far, walking around pantomiming her actions in the area in front of the witness box. "And what did you do next?"

Powell tried again, saying she'd already answered these questions. Villars overruled him.

"You mean cutting the chicken?"

"If that's what you did next, yes."

She stalled now, her face clouded. "The things I did in the kitchen, that's what I did."

"Did you leave the kitchen during this time?"

She was silent.

"Mrs. Barbieto, did you leave the kitchen during this time?"

The witness looked up at the judge. "I have to go to the bathroom."

"Mr. Freeman," Villars said, "are you close to wrapping this up. The witness has to go to the bathroom."

"No, no, no!" Mrs. Barbieto's embarrassment was acute. "That's what I say… said. I've got to… I had to go to the bathroom then."

Freeman stood stock still for a bit. "You went to the bathroom before you cut up the chicken? Do you recall how long you were in there?"

The witness was squirming, clearly uncomfortable with such talk. "Not long, maybe a minute, I don’t know."

In the courtroom there was a low rumble. Freeman, his point made, ignored and tried to bring Mrs. Barbieto back to his side. "All right, let's move along now. You've testified that you began to cut up a chicken. Where was the chicken before this?"

Freeman maddeningly led her through each step – the chicken had been wrapped in the refrigerator, she'd come over across the kitchen from the refrigerator to the sink, unwrapped it, threw away the wet wrapper, washed the chicken in cold water, dried it with a towel.

First she'd cut off the wings, then both leg and thigh quarters. Next she'd separated one leg and thigh portion – and just before she was about to cut the other one she heard the yell and then the shot.

"Now, Mrs. Barbieto," Freeman concluded, still friendly and helpful, "this is why we bagan with my little demonstration of what a minute is. It's not, as you know, just a short amount of time. It's an exact amount of time – sixty seconds. And you've testified that you heard Jennifer fighting with her husband a minute – sixty seconds – before you heard the first shot."

"No, it was more than that."

"It could have been a lot more, couldn't it? Perhaps as much as, say, ten minutes?"

"I don't know. I didn't look. It just seemed like, you know, not too long."

But easily, Hardy thought, long enough for Jennifer to have left the house and "another dude" to come in and commit the murders.

Freeman let the jury take it in, consulting the notes he held in his hand. Reaching his decision, he looked to the bench. "Your Honor, it's almost twelve-thirty. I have a lot more questions for this witness but this is a good breaking point if the People have no objection."

The People did not.