The 13th Juror

40

Before she had known that the jury would be coming in that day, Frannie had made plans for the weekend. She knew that her husband would probably want to stick around, hang out with Freeman, discuss and analyze and worry. She didn't think that would be wise.

So when they got home from picking up Rebecca and Vincent at Grandma's, although she still felt sick to her stomach, she helped Dismas pack the car and then got him in the passenger seat and drove north for ninety minutes, up to the small town of Occidental, near the Russian River.

She had rented adjoining rooms in the old Union Hotel where there was nothing to do except eat huge plates of home-style Italian food and drink in the bar and dance to country music and, in the soggy daytime, drive around some more looking at redwoods and water and playing with your children.

In spite of her own feelings, she gave Dismas until they got to San Rafael – about thirty-five minutes – to get out all of his frustrations and impressions about the trial and verdict and plans for the upcoming penalty phase.

Right now they were having a family weekend. The penalty phase would take over their lives soon enough. This was an opportunity for some quality in their lives. She had gone to some lengths to arrange it. And she was going to demand it for herself, for her children, for her man.

The rest of the world could wait until Monday.

Hardy knew it was one of the reasons he loved her. She did things like that.

His own inclination was to keep pushing and pushing until something gave, but she had taught him on a couple of occasions that sometimes it didn't hurt to back up a step and look at the direction you were pushing. A different angle of perspective might get more accomplished.

He had originally planned to go right up and talk with Jennifer, but on Monday morning, marginally refreshed from the food and simple beauty of the north coast – although he hadn't slept much – he found that sometime over the weekend he had decided to call on Ken Lightner.

Lightner had been, not exactly a thorn, but a presence since the beginning – in any event his involvement was greater than Hardy had originally suspected and he wanted to get to the bottom of it if he could. Not only that, he was considering the battered wife issue again – he felt he had to. The jury had decided that Jennifer had killed Larry and Matt, but he thought they might be persuaded that she wasn't a cold-blooded killer deserving execution if they knew how often and/or how badly she had been beaten.

It was worth a try. He didn’t have much else.

Lightner had sounded pleased, perhaps relieved, to hear from him. Maybe he felt ostracized since the allegation of the affair had come out and they hadn't wanted to bring him to the fore because his relationship with Jennifer could appear to give her one more reason to get rid of her husband.

The office was across from Stern Grove in a large mixed-use apartment complex called – cleverly – The Grove. It was a glass and brown-shingle contemporary building surrounded by trees, the parking lot on this morning half-filled with a disproportionate sprinkling of high-end German automobiles. Rent here wouldn't be cheap.

In spite of a morning sun, autumn was in the air. After he had parked, Hardy stood a minute by his car, arrested by the scents of eucalyptus and wood smoke, although where the smoke came from was a mystery. No one was supposed to burn anything outdoors anymore – it was illegal.

Lightner's office seemed to take up most of one of the back-corner modules. Hardy rang, waited, was buzzed in. He walked down a long hallway of muted color. There were six or eight non-representational framed things – works of art? – on the walls.

Lightner's bulky frame appeared in the light at the end of the hall. "Mr. Hardy," he said. "Welcome."

Hardy shook hands and was introduced to Helga, Lightner's secretary. The reception area was bigger than it had to be but still, somehow, cozy. The two couches were overstuffed. There was an easy-chair and ottoman in hot orange, yellow, blue and black, the only brightness in the office. Helga herself – she preferred, she said, Helga to Ms. Or Miss Brun – was about forty and wore no rings. She had a low black desk, the surface of which was clean except for a green felt blotter. A low shelf held a typewriter – no computer here – with what Hardy took to be a six-line business phone and intercom set up next to it. Helga asked if they would like coffee and both said they would.

Lightner led the way to his consulting office, a room that was small but warmer than the reception area. It wasn't pastel, for one thing. Done in greens, leathers, carved woods and glass, it was restful, its windows looking out onto one of the older groves, sunlight coming through the trees. Hardy avoided the couch and took one of the two leather armchairs. Lightner left the door to Helga's area open and sat in a chair by the door.

"I'll come right to it," Hardy began. "You went to Costa Rica for a week and stayed with Jennifer." He figured he didn't have to say anything more.

Lightner frowned. "Are we going through this again? I thought I'd covered this with Mr. Freeman."

"Freeman?" Somewhere in the back of his mind, Hardy figured he must have known this, though he'd never made the overt connection. Yes, Freeman must have talked to Lightner. He had said right after the trial that Lightner had convinced him he hadn't done anything wrong with Jennifer, been intimate with her. At the time, right after the trial and the verdict, it had gone right by him. And, just like Freeman not telling him about Jennifer being guilty of killing Ned, he hadn't reported to him about this interview with Lightner either. Typical David.

The psychiatrist nodded. "So now what, Mr. Hardy? Now you too want some assurance I was not violating every code in the book and having sex with my patient?"

The burden of saving Jennifer had been buiding steadily on Hardy, or probably he wouldn't have resorted to the extreme ply he was now about to try. "Dr. Lightner, your patient and, I gather, friend, Jennifer, told me otherwise." Of course, she hadn't, but if it would smoke out some mitigation for her, some alternative…

Lightner looked shocked, then saddened. "Mr. Hardy, I find it hard to believe that, I really do, I'm sorry. But if, indeed, Jennifer did say this, well, there are psychological reasons, but you would only say they were self-serving. I tell you that I did not have intimate relations with my patient. I testified to that. I believe, I thought, Mr. Freeman believed me."

Hardy shrugged, feeling increasingly uneasy about what he was doing. "So where does that leave us, Dr. Lightner? You've wanted to help Jennifer, and, believe me, I'd love it if you could. So…?"

Lightner stood and crossed the room. He opened a door that led out to a patio, motioning to Hardy, who got up and followed. Outside, Lightner walked a few steps into the grove, then turned. "I'll take a polygraph if you'd like. You know how much I care about Jennifer, but I can't have it said I've been intimate with a patient, taking advantage of the relationship. I'm sorry, but Jennifer is just not telling the truth."

Finally, Hardy relented. "Sorry, it's me who isn't telling the truth. It was a bad try."

"Okay, here's what happened, just as I told Mr. Freeman…"

He and Jennifer had stayed in the same hotel room in Costa Rica because when Lightner had arrived she had become scared all over again, realizing that she hadn't run that far if he could be there on such short notice. She had felt vulnerable, alone, checking out of her own room, thinking she would be leaving no paper trail.

It stretched Hardy's belief to the breaking point, but the explanation was plausible, if foolish, from Lightner's point of view. Still, people did foolish things – it could have happened the way Lightner told it. And now Hardy felt he needed Lightner if he was going to have any real chance to save his client's life. And he had to think of it that way… Freeman's appeal working out was not to be counted on.

Between answering the phone Helga had managed to bring the coffee. They were back in their chairs, more relaxed now, though not totally allies. Lightner had not been impressed or pleased with Hardy lying to him, he said. Still, they were on middle ground, working for the same result. They didn't, after all, have to be pals.

Hardy sat with his coffee perched on his knee. "What do you personally think is the situation here, Doctor?"

"What do you mean?"

"I mean, what in your gut do you believe?"

"I believe her, Mr. Hardy. But as I've said, if she did it, she was driven to it. It's not a frivolous defense, you know." Placing his cup and saucer on the low table next to him, Lightner turned toward Hardy and leaned forward in the chair, hands folded. "I've said this all along – I've never understood Mr. Freeman's concept-"

"He was obeying his client's wishes about the abuse, the same thing you'd do." Hardy wasn't about to listen to Lightner criticize anybody. His own judgment, after all, was a long way from exemplary.

"But the fact remains, he lost. And Jennifer loses." He held up a hand. "My point is that he could have called several witnesses – myself included – who might at least have planted the seed. Did you visit any of Jennifer's past physicians?" At Hardy's nod, he continued. "Okay, then you know there was abuse. And there were more people, people I've talked to – her own mother, for example. An abused person as well, as you may know. Even Helga has seen Jennifer come in here, staggering with the pain, limping. It was a classic situation – Larry Witt was literally beating her to death."

"But Jennifer told Freeman – she ordered him – not to get into that."

"He should have overridden her. He was her lawyer. His job was to clear her, not allow her to be convicted. She is a victim, Mr. Hardy."

Hardy raised his voice. "She would have fired him, don't you understand that?"

Lightner sat back, his face working. "And why is that?"

"If she admits she was beaten, to her it's the same as admitting she killed Larry. And if she killed Larry, that's admitting she killed Matt."

"She doesn't have to admit anything, does she?" Lighter said. "You can call all those people as witnesses, can't you? Get them to talk about what they've seen with Jennifer. Maybe nothing overtly even about Larry. I could come on as an expert witness – I've done it before. This kind of denial is common. I wouldn't have to talk specifically about things Jennifer told me. I'd just discuss the syndrome, and then let the jury make the connection."

"That she killed Larry because he beat her?"

"They've already convicted her – it can't hurt her any worse and it might help. Show the jury what she's been through. It might, if nothing else, move them to some sympathy. This woman has done nothing but suffer her whole life. Maybe you can end the cycle."

Lightner shook his head. "God, this is a travesty."

"Yes, it is," Hardy said.

Lightner walked him out to his car. As Hardy opened the door, Lightner reached into his wallet and took out a card. "I expect to talk to her today, as I've been doing, but I want you to feel free to call me anytime if you feel I can help you, if I can come in with you and perhaps try to convince her to agree with a defense, anything at all. I'm always here."

"You don't go home?"

Lightner's face lit in a brittle smile. "My ex-wife and children have the home. I've a space behind the office" – he motioned back to the building – "bedroom, kitchen and whatever I was able to keep. But it's all right, I'm getting along. Shrinks have a notoriously high divorce rate. We're often better with other people's lives than with our own."

"Mr. Hardy?" It was Phyllis on the intercom. "There's an Emmett Kelly down here to see you."

Hardy pushed his files away, smiling. "Send him up."

A minute later Abe Glitsky's form filled the doorway. "I couldn't resist," he said. He walked across the room and looked down onto Sutter Street, then turned back and plumped himself halfway over the couch, laying his head against the armrest. "I think I'll take the afternoon off, get in a nap. Naps are rare among the ranks of homicide inspectors. I should do a study."

"You should," Hardy agreed. "But in the meanwhile…"

Glitsky sat up. "In the meanwhile I have made an ass of myself yet again in your behalf, although I realized on Friday the horse got out of the barn. I thought I'd make sure it all got covered, so I went out to see the Romans, told them we were finishing up some paperwork."

"And you found out?"

Glitsky grinned his horrible grin, the scar through his lips stretched white, the eyes with no mirth in them. "I found out that they have no idea what either or both of them were doing on the Monday after Christmas last year, which is the worst possible news for you."

"Why is that?"

"Because," Glitsky held up a finger, lecturing, "if they had spent any time being guilty and thinking up an alibi, I believe they would have remembered it and trotted it out. That's what guilty folks do. As it was, they just looked at each other." Glitsky stood. "They had no clue, Diz. There's nothing there."

By this time it was getting to be no surprise. "Well, at least I feel like I've covered the bases." Then remembering the other thing he'd been meaning to put to his friend. "You filed a report on that visit to the bank we made, didn't you? The three-minute thing?"

Glitsky had gone over to the dart board and was coming back to Hardy's desk, having pulled out Hardy's near-perfect round. "Sure. I was on duty. I thought Terrell could use it. Why?"

Hardy shrugged. "Just following up."

Glitsky threw and the first dart hit the wall a foot below the board. "These are heavy," he said. "My kids darts don't throw like these."

"Twenty grams." Hardy grimaced at the hollow sound, at the hole in the wall. Another dart flew, smacking the wallboard high and wide of the target. "they're made out of tungsten. They're pretty good darts."

Glitsky fired the last one. It grazed the bottom of the board before sticking, again, in the wall. The inspector headed for the door, stopping when he got there. "I don't know," he said. "I think they might be broke." Then he was gone.

He was almost through the first, and had another four working days – Villars had given everyone a week off before the penalty phase was to begin. Hardy was grateful for the prep time, but the probable reason for it galled him – Powell was in the stretch run for his election and it seemed Villars was cutting him some slack.

He couldn't, of course, prove it, but that didn't make him any less suspicious.

Freeman hadn't been to the office either, which was just as well. He was sick to death of Freeman and his histrionics. He was also sick of himself, of his waffling – every chance he'd got, he'd backed off in the face of the older man's resolve and personality. Half a dozen times he should have just stood his ground. Said this was what was what and take it or leave it. But partly he'd wanted to believe that Freeman was right and would prevail. Partly because if Freeman won he wouldn't have the burden of trying to save Jennifer's life. He had wanted so badly to get out from under the responsibility that he'd convinced himself that Freeman's strategies would likely work.

He had been whipping himself over his own deficiencies. Time and again he had driven from Olympia Way down to Haight Street, trying to find a shortcut that would undermine his argument about Jennifer getting to the bank.

But through it all ran a common thread. He had believed – he had never questioned – that Jennifer had run where she said she had. At least she had run on paved streets. He had dutifully consulted his map. No, he'd convinced himself there was no flaw. Even if Jennifer had taken a slightly shorter route, as long as she stayed on the streets she could not have made it to the bank and also killed Larry.

Now he realized he had ignored UCSF medical center, about ten square blocks of campus and buildings at the base of Mount Sutro between Jennifer's home and her bank. He had seen it, of course – he knew it was there. But he had never gotten out of his car and walked through it. On the map, it looked impenetrable, a dense maze of impassable structures. The huge medical buildings gave the impression of a fortress, not a park anyone could simply stroll through. It did have a wall – why did he think it was solid, without gates? Why didn't he get out and stroll through and look?

Because he was too clever for his own good, and Freeman's and, most important, Jennifer's. All his careful calculations about time and distance and how Jennifer couldn't possibly have made it to the bank and accessed her account when she did and still get back home in time to commit the crimes didn't really signify what he had been convinced they did. He had set Freeman up for Powell's devastating rebuttal. And that, in his opinion, even more than Freeman's ego and tactical blunders, had cost them the verdict.

Hardy had always, in theory at least, considered himself more or less in the death-penalty camp. He didn't pretend it was a deterrent. What it did do, though, was eliminate the possibility that the person who was executed was going to kill another innocent citizen – either when they got out on parole, or, if they were doing life without parole, during their life behind bars.

He had favored what he called the mosquito argument – if you killed a mosquito that bit you, you at least guaranteed that that particular mosquito wasn't going to bite you again. Other mosquitos didn't have to know about it and tell each other and get deterred – if another one bit you, you killed that one too. That way, at least you had less mosquitos in the population.

But he knew Jennifer. She was not a mosquito. He understood why she had done what she had done if she had done it. And he didn't think she should get the death penalty for that.

Here, he knew, at least generally speaking, he was getting on shaky ground. Every murderer had somebody who knew him – or her. Somebody who understood that they'd had a lousy childhood or whatever it was that had made them believe it was somehow okay to kill as an expression of rage or frustration. The flip side to that, of course, was that the victims also had people who had loved them, whose lives were ruined and hearts broken. What about them?

To say nothing of the victims themselves. They didn't ask to be victims, did they? They had done nothing wrong and now they were dead, and generally that's where Hardy drew the line – the people who made innocent people dead deserved to die.

Hardy believed that at some point, adults in society had to take responsibility for what they were, for who they'd become. If as grown-ups, they'd turned into killers, they didn't deserve any breaks. Adios, you had your chance and you blew it.

It was a tragedy all around, there was no denying that. It was a tragedy that children got atrociously bad starts in life, that people turned out bad. But it was the world. It was a worse wrong, a worse tragedy, to keep giving bad people the opportunity to do truly bad things again and again.

But what about someone like Jennifer, who had two husbands who beat her? Whose life had been a living hell? Where did she fit in?