The 13th Juror (32 page)

"Did you get the feeling she was dismissing you?"

Freeman objected to that and was sustained, but Powell didn't break stride.  "What did you do then?"

"I told her I'd rung the doorbell and no one had answered.  She said her husband had probably gone out to cool off, just like she had.  And taken her son."

Next to Hardy, Jennifer was whispering to Freeman that she hadn't wanted the cop to have to confront Larry because she knew he would beat her up for getting the police involved.

Gage was going on.  "I said I'd like to see the house, make sure, in view of the suspected shots, that everything was okay.  She again told me she was sure that everything was in order but I insisted, so finally she opened the door."

"And then what happened?"

Gage swallowed.   "Well, I smelled the gunpowder immediately, so I told her to sit on the couch.  I drew my weapon and began to walk through the rooms of the house, first downstairs then up, until I found the bodies."

The courtroom was still.  Gage was sweating, apparently reliving the moment — Jennifer seated on the couch in the living room, waiting while he looked…

"And what did you do then?"

Gage took a breath.  "I came out onto the railing and looked over and down at the defendant, at Mrs. Witt there.  I said, 'Stay here, please.  There has been a shooting'."

"And what did she do?"

"She looked up at me and said, 'I know'."

*     *     *     *     *

After the lunch recess Inspector Sergeant Walter Terrell took the stand for the second time.

The Walter Terrell who was sworn in this afternoon was not the eager young man of only a few days before.  Gone was the flight jacket and casual slacks, the hair half-uncombed, the designer shirt unbuttoned to the neck.  For his testimony this time he wore a three-piece charcoal pinstriped suit that had to have set him back plenty — a lawyer's suit — complete with red tie and white shirt.  He had cut his hair and it lay where he had put it.

Even the aggressive demeanor had been tempered.  Hardy knew that if you wanted to succeed in this theater you sometimes had to grow up in a hurry, and obviously two things had happened since Terrell's last appearance as a witness in the hardball of a capital murder trial — someone had spent time coaching him, and he had wanted to learn.

At first glance it looked as though Powell had made Terrell understand something that had been foreign to him before — that a witness didn't need a macho personality out on his sleeve to be effective.  If placed in a careful arrangement of the facts.

Powell, for whatever his flaws in preparing this case, continued to exude confidence — that he was winning.

It was unsettling.

"Inspector Terrell," Powell began, "since your credentials have already been established, let's begin with your arrival at the murder scene, the Witt house on Olympia Way.  This was when?"

This time up Terrell didn't break out his winsome smile — all business, not trying to please anybody, just here doing his job.  "I arrived at the scene at 10:43.  There were already officers there and the room had been secured."

"Did you see the defendant, Jennifer Witt?"

"Yes.  When I came in she was sitting on a couch in a large room off to the right of the entrance.  One of the officers there pointed her out to me and I went over to speak with her."

"What was her demeanor at that time?"

"She was sitting with her feet tucked under her, her hands crossed in her lap.  She was quiet."

"She was not crying?"

"No, sir."

"And she could speak coherently?"

"Yes, sir."

"Did you, Inspector Terrell, have any reason to suspect that Mrs. Witt had committed the murders at that time?"

Terrell thought for a beat.  "Not really, other than that, statistically, spouses often kill each other."  Terrell sat back, for the first time comfortable in the hard witness chair.

Powell probably looked genuinely puzzled to the jury.  "But didn't Officer Gage tell you about Mrs. Witt's saying 'I know' when he told her about the bodies upstairs?"

"Yes, but I guess I chalked that up to shock.  Plus she might have come to that conclusion while waiting for him to check the house."

This was good, but not for Jennifer.  Terrell was repairing his hot-head image of the other day.  He hadn't jumped all over Jennifer like a rabid dog.  He had waited for the evidence to pile up.  And Powell was leading him toward it, toward his certainty that Jennifer had done it.  "During later interviews, did you ask Mrs. Witt who she thought might have done this?"

Now Terrell sat forward.  "Well, in law enforcement we always ask the question '
cui bono?
', which means who benefits?  And, of course, when I learned that Mrs. Witt would inherit something like five-million dollars, well, it got my attention.  I asked if anyone else would inherit.  She said no."

"Go on."

"The next thing was that she had told me her husband had no enemies, and if that were so, the motive for the murders had to be impersonal.  Robbery, for example.  I asked her to search the house and list anything — however small — that was missing."

Hardy had heard all this before, but it was now coming out in a believable and damning fashion.  The gun never mentioned as missing by Jennifer, her belated memory of the strange swarthy man in a trenchcoat walking up the street as she walked down it.

When Powell was finished and turned the questioning over to Freeman, the defense attorney started with the same line Hardy would have taken — the only pinhole in an otherwise seamless fabric.

"Mrs. Witt told you her husband had not enemies, is that so?"

"Yes, sir."

"And in the course of your investigations, you looked into this assertion?"

"Yes, I did."  Terrell was volunteering nothing, playing Freeman's game, pausing before he spoke, never giving a word without thought.  He met Freeman's stare with his own.

Hardy knew a little of what made Terrell tick — the inspector was daring Freeman to try and come get him.  And somehow he was pulling it off without appearing belligerent.  Powell had trained him well.

But something was up.  Suddenly Hardy put together Powell's confidence and Terrell's attitude — the defense was walking into a trap.  He raised a hand.  "Excuse me, Your Honor."

Freeman, interrupted as he was trying to find his rhythm, turned around, glaring.  "I'd like to request a short recess."

Villars frowned — the afternoon had been long enough without these constant interruptions.  "If there are no objections."  There were none.  She called a fifteen minute recess.

*     *     *     *     *

"There's something going on," Hardy said.  "We're going to get sandbagged."

He and Freeman were standing nose-to-nose just inside the door to what they had taken to calling their suite.  The windows were sealed shut and the heat either was working too hard or the air conditioner wasn't working hard enough.  In any case, the temperature was at least ninety degrees.

"On what?  I'll bring up a couple of other dudes with Terrell and sit my weary ass back down."

"I know that's what you want to do.  What I'm saying is, don't do it.  Terrell's got something he's dying to leak out.  You hurt Powell on Alvarez and he knows it and still he's a Cheshire cat out there, and I don't think it's faked."

"Everything Powell does is faked."

"Unlike your own sincere self, right?"

Freeman let it go.  "Goddamn, it 's hot as hell in here.  What do you want me to do, just dismiss Terrell?  Stop right here?"

"How could it hurt?"

The look Hardy got in response wasn't flattering, but he didn't care.  He was convinced that they had closed to within a length of a good chance of acquittal after the testimony of Barbieto and Alvarez.  After all, they were talking reasonable doubt here, not certainty, and Hardy thought they had it.

Further, even though Gage and Terrell hadn't gotten them any points, neither had they put too many on the boards for Powell.  That, though, could change in an instant.  One false move now could turn the momentum of the entire trial.  It was a time to be conservative in the literal sense — conserve what you've already got.  Don't let the other side score.

This, however, had never been David Freeman's style.  "You ask me how it could hurt?  It isn't presenting the best defense for our client, that's how.  Terrell's on the record as implying nobody else in the world had a reason to kill Larry Witt.  He's built it on our client's saying Witt had no enemies.  You want to let that to by?  You don't think that's important?"

"Sure it's important, but we can get to it next week—"

"We can introduce it now.  Get the jury primed to accept the details later."

Hardy saw that he wasn't going to convince his partner, which was no surprise.  Well, perhaps he was wrong; it was, after all, just a feeling.  Maybe Terrell's presence put hunches into his gut.  Anyway, he'd tried to warn David, satisfy his conscience, put his two cents in.  And, as in the rest of the world, two cents were essentially worthless.

Freeman pulled open the door and went out into the blessedly cool corridor.

*     *     *     *     *

"Inspector Terrell, we were talking about Larry Witt's lack of enemies, I believe.  You looked into Mrs. Witt's assertion that he had no enemies, is that right?"

"That's part of any homicide investigation, finding out who had a motive to kill the deceased."

Freeman, still flushed from the heat of the suite, glanced down at the yellow pad he was holding.  "And were your efforts to uncover enemies for Dr. Witt successful?"

Terrell's opinion about who might be Larry Witt's enemies — in fact, this whole line of inquiry — as speculative, argumentative and irrelevant, but Powell didn't appear to want to object.

Terrell was in no hurry.  He pushed his back against the chair, stretching, lifted his shoulders, let them fall.  "In what sense?"

Freeman looked to the jury.  Surely a cooperative witness could understand this question.  But he bravely pressed on.  "In the
sense
that you found people who might have had a motive to kill Dr. Witt?"

"Might have, perhaps."

"And in your thorough investigation, did any of these people become suspects?"

"No."

"No?  Why not?"

Terrell explained patiently:  "Because at the time there wasn't any evidence linking anyone else to the crime."

A good answer.  But Freeman had at least gotten the concession that "perhaps" there had been other people with motives.  Hardy thought he should take that and sit down.  But again it wasn't to be.  His heart sinking, Hardy recalled Malraux's dictum that character is fate.  Was Freeman pressing on to his fate — to Jennifer's?

"At the time, you say.  You mean that since the defendant has been in custody you've come upon such evidence?"

Freeman turned to the jury, including them in his reaction.  "Linking another person to the crime?"

"Yes."  Terrell making Freeman pull it out.  Hardy was silently begging his partner to stop, sit down, call it off.  But it was already too late.  Now it would have to play out.

"And still you've kept Mrs. Witt in jail?  Even though there was another suspect?"  Again that inclusion of the jury.

"I didn't say there was
another
suspect.  In fact, this individual only strengthened Mrs. Witt's motive.  There was nothing that tied him to the crime scene."

Jennifer gripped Hardy's arm.

Terrell could hold it no longer.  Without being asked, he declared:  "Mrs. Witt was having an affair.  She was sleeping with her psychiatrist."

It was speculation, it was obviously based on hearsay.  It was totally inadmissible, but David had asked for it and he got it.  He didn't bother to object.  The damage was done.

38

It was the battle of the anchors, each channel outdoing the other trying to bring out dirt on Dr. Ken Lightner, alleged lover of Jennifer Witt.  They weren't having a lot of luck.

Even though it was date night, Hardy called and told Frannie he was sorry but he wasn't coming home.  She could find out why by watching the television.  He had a lot of catching up to do.

After he left the Hall of Justice he went back to the office and watched some television himself.  A few of Freeman's associate red-hots hung around in the conference room trying to figure out how to salvage something from this disaster.  Nobody had any good ideas, although all agreed it was a bitch when your client lied to you, or seriously withheld information from you.

Freeman himself, after an hour-long argument with Jennifer during which she had continued to deny any affair with Lightner, in spite of the fact that they had stayed in the same room in Costa Rica for a week, had said he was going out to dinner alone at the French restaurant below his apartment.  He was going to drink a good bottle of wine and then he was going to drink another one.

Once Terrell's testimony opened the dike, the flood swept over Freeman.  On redirect, Powell revealed the details of Jennifer's extradition — how they had found her.  Then he had called Lightner and gotten it confirmed.  Everything, that is, but the affair itself, which Lightner strongly denied.

The jury, however, would draw its own conclusions about that from the facts.  They would probably be the same as those drawn by Hardy, Freeman and every other soul in the courtroom — which was that your heterosexual male was not likely to go and stay in a hotel room on a beach in Costa Rica with a world class beauty like Jennifer Witt for a week and not have the physical creep in from time to time.  Or to assume that this relationship might not be a preexisting condition from who knew how far back.

After she had broken out of jail, Terrell had played one of his famous hunches.  He had figured Jennifer would have to contact someone, and from his earlier investigations he tagged Lightner as the most likely, indeed the only possible, person.  Jennifer had no close friends and was estranged from her natural family — there really had been no other choice.

And because it was a capital murder case, because Powell, the candidate, was so strongly in his camp, because Jennifer's escape had infuriated the judiciary, Terrell had somehow squeezed enough juice to get a warrant on the phone company's list of Lightner's outgoing calls.

The outgoing calls to Costa Rica were good enough.  Terrell was going to question Lightner in person when — lo and behold — the doctor had gone off to Costa Rica for a week, a much-needed vacation.  Terrell had followed him down, laying low, getting enough to come back and start the extradition proceedings.

Hardy would have bet a lot that the money for all this had come from Dean Powell's campaign fund.  There was no way that the San Francisco Police Department would pay the freight to fly an officer down to Costa Rica to investigate some alleged hanky-panky.

Hardy realized that he had for too long let himself be diverted by Freeman's theatrics and boundless confidence.  This case was far from won — in fact, it might now be lost.  It was one thing that Lightner had gone down to Costa Rica, although that was bad enough.  But Terrell's testimony that she and Lightner had shared a
room!
  The fact that there had been another man in the picture all along — and who knew for how long? — would work against Jennifer with the jury.  Now in their eyes she also had a
personal
motive for killing Larry — it had not just been the money.  She was cheating, too!

Hardy understood what the jury would feel — Jennifer was a woman who did what she wanted, took what she wanted and the world be damned.  She would seem exactly the kind of person one would expect to do what she had been accused of.

He knew now that whether or not Freeman chose to address this Costa Rica business in the defense's case-in-chief, they were going to need to distract the jury by presenting their other dudes — someone else who might have had a plausible motive and an opportunity to have killed Larry Witt and the means to have done it.  Hardy had his briefcase open, the files on his desk.  Forcing himself — he had to start somewhere — he looked up the number of Jody Bachman, the Los Angeles-based attorney for the Yerba Buena Medical Group.

Since it was eight-thirty, after hours, he wasn't surprised to get one of those automated answering devices that asked if you knew your quarry's last name or extension.  Dutifully, he punched in the first four letters — B. A. C. H.

The phone rang once.

"Jody Bachman."  A youngish voice, not exactly squeaky but enthusiastic peppy.

"Mr. Bachman, my name is Dismas Hardy.  I'm an attorney in San Francisco and left a message for you several weeks ago.  I'm following up."  Tardily, he added to himself.

There was a longish pause.  "I didn't call you back?"

Hardy had to smile.  They ground down these guys so far in the corporate mills they had to look up to see down.  "You might have," Hardy admitted.  "I didn't get any message, that's all."

"I'm sorry.  It's been crazy here.  Maybe you know."

They schmoozed for a moment, non-billable lawyer talk about the rat race and working until all hours, then Hardy go to it, saying that Todd Crane recommended talking to Bachman about YBMG.  "Sure, I represent them.  If I can help you — but you said this was a murder trial."

Hardy explained.

"Witt?  Witt?  I can't say it rings any kind of bell, but I've been awake for four days running now and sometimes I don’t recognize my own name."  He laughed weakly.  "The glamour of the LBO."

"What's that?" said Hardy, the innocent.

"What?  LBO?  Leveraged buyout.  Where have you been, Mr. Hardy?  The wave of the past, or future, depending on your politics.  Or your money."

"Same thing, aren't they?"

"Not exactly but that's often a good guess.  So listen, about this Dr. Witt…"

"I'm pretty sure he called your offices last December.  I don't know who he would have talked to."

"Probably me," Bachman admitted, "but I really don't remember.  I'll have my secretary look it up and get back to you, how's that?"

"That'd be good.  Thanks."

"Sure.  No problem."

*     *     *     *     *

"It's the real you at last," Hardy said to his friend Abe Glitsky, who stood in the doorway to his apartment wearing a clown costume — big floppy feet, white pancake make-up, a cute little red nose.  "Let me guess…"

Glitsky cut him off.  "It's Jacob's birthday party."  He turned back into the apartment, Hardy tagging behind.  Flo came up, bussed him on the cheek and asked if he wanted some cake or ice cream.  There were about fifteen ten-year-olds in the cramped kitchen, none of them meditating.

"Abe looks good."

Flo gave him a look.  "You wait.  You'll do it too."

Hardy thought that she was probably right.  He couldn't, at this moment, though, imagine himself as a future reincarnation of Bozo the Clown, but he had to admit it was possible.  "Is he going to be done soon?"

"Ten minutes," Flo said, "maybe a little more.  He just does a little act."

"I'd love to see it."

She moved closer to him, a hand on his arm.  "I think you'd cramp his style.  You can wait in the boys' room."

All three of the Glitsky boys had the same bedroom, and it wasn't a big one.  Jacob and Isaac shared the bunk bed, and OJ, now almost five, used a little daybed against the opposite wall.  Hardy sat on it listening to the laughter from the kitchen a his friend the homicide inspector did his clown tricks.  He took the opportunity to rest his head for just a second on the pillow.

*     *     *     *     *

"I hate to wake you but my kid needs to go to sleep."

Hardy looked at his watch.  He had crashed for nearly an hour.  Glitsky was back in normal clothes, holding out a cup of hot coffee.  Hardy took it, sitting up, rubbing a crick in his neck with his free hand.  "I had a dream about you in a clown suit," he said.  "It was horrible."

Glitsky shook his head and turned around.  Hardy followed him into the kitchen, sat down at the table with his coffee cup.  Glitsky poured some boiling water into a cup and started fiddling with the chain at the end of his silver tea strainer.  In the back rooms they could hear Flo finishing up with the boys, supervising the washing up, getting them into their pajamas, ready for the sack.

"But enough small talk," Hardy began.  "What did you ever find out about the Romans?"

Over by the stove Glitsky dipped the strainer up and down in his cup and watched the steam rise.  "I know they were after the Greeks but beyond that it gets a little fuzzy."  He picked up his cup, holding the tea chain in his other hand, crossed to the table and sat. "Latin wasn't my thing or I'd probably know more."

Hardy drank coffee.  "Cecil Roman, father of Melissa Roman, deceased patient of Larry Witt.  Mr. Roman accused Witt of performing an abortion and killing his daughter."

The tea was by now as dark as Hardy's coffee and still Glitsky kept dipping the strainer.  "Oh,
those
Romans.  No.  I haven't found out anything.  I probably would have told you if I had."  He finally took the strainer out and took a cautious sip.  "You really going to need it?"

"I'd like to know if Roman, or his wife for that matter, has an alibi."

Glitsky nodded.  "The case falling apart?"

Hardy told him about the events of the afternoon, the allegation about Lightner, how it would be helpful if they had at least
one
other person who might have had some good motive and opportunity to kill Dr. Witt.

"It sounds like this guy Lightner kind of sticks up.  He was sleeping with the lady and he could have—"

"They both deny they were lovers."

Glitsky gave him the eye.  "I'm sure."

Hardy shrugged.  "It doesn't really matter.  The jury's going to believe it."

"So there's a motive for him."

"Except he was working that morning.  At his office.  With secretary in attendance.  Terrell already checked it out."

Glitsky slurped some tea, his eyes out of focus somewhere behind Hardy.  "I'm not sure I understand why I want to help you point the finger away from a murder suspect who looks to me like she's guilty.  You want to explain that part to me again?  I'm a cop, remember?  I'm on the other side."

"I could say to serve the ends of justice but I sense you'd gag or something."

"Or something."

"Okay, I won't say that.  How about we're such good friends and I'd do the same thing for you?"

"Nope.  No good."

Hardy got up for more coffee.  At the counter he turned back around.  "I've got it — you might get the collar on the real killer."

"Except we think she's already on trial."

"Well, what about if it isn't her?  Look, Abe, the Romans hated Larry Witt.  All I'm asking you to do is find out if they were in Tahiti or some place on December 28 so I can cross them off."

"That's all, huh?  Find out what somebody was doing on a certain day ten months ago?  You saw them, didn't you?  Why didn't you ask them?"

"I think it was that the opportunity never came up."

"So I go find out, right?  Piece of cake.  Speaking of which, cut me a little of that, would you?"

The remains of Jacob's birthday cake, pretty well destroyed, were on the drain, and Hardy scooped some of it onto a paper plate and brought it back to the table.  "See what a friend I am?"

Glitsky rubbed a finger through the frosting, popped it into his mouth.  "Absurd," he said.

Hardy shrugged.  "But so much of life is."

*     *     *     *     *

Freeman did not have two bottles of wine at his French restaurant.  Instead, after the first one, he decided he had to take another crack at Jennifer, get to the bottom of this affair issue.

But he didn't make it upstairs to the jail.  Ken Lightner was coming down the wide steps at the front of the Hall of Justice when Freeman arrived.  Not given to hesitation in any event, Freeman jumped out of the cab, bumping his head on the door and calling, "Dr. Lightner, wait a minute, would you?"

Fumbling for some money, Freeman threw a mixed handful of coins and bills through the cab's front window.  Lightner had come down the steps.  "Mr. Freeman, I'm sorry, but it's late and I'm very tired.  Whatever this is, it's going to have to wait."

"It's not going to have to do anything of the kind, sir.  I need the truth from you and I need it now."

Lightner gestured back toward the building.  "I told the truth in there this afternoon."

"And tomorrow, if I choose, I get to cross-examine you about that, about what you said.  Would you rather we get to it then?  What have you been doing in there?  Visiting my client?"

"Visiting my
patient
, Mr. Freeman.  My patient."

"And your lover?"

This time Lightner's response was measured.  "I've denied that under oath.  You're going to have to accept that."

"I don't accept it," Freeman said.  "I don't believe it, and that makes you my best suspect."

"
Me
?  Are you joking?"

Freeman jabbed a finger.  "Yeah, you.  No, I'm not joking.  If you were having an affair with Jennifer, you've got at least as good a motive as she does to have killed her husband."  Of course he didn't really believe that, but he had to try.  "So I'll look forward to talking to you tomorrow on the stand, and if you think you're tired now…"  Freeman headed for the wide doorway.

"Now just a minute…"

Freeman turned.  "It's going to take a sight more than a minute, Doctor.  You got the time or not?  If not, I've got better things to do."

They were ten feet apart, Freeman flat on his feet like a fighter.  Lightner scratched at his beard.  "All right," he said.  "But not here."

"I know a place," Freeman said, already moving, leading the way across Bryant, through the doors and down the steps to the underground labyrinth leading to Lou the Greek's.  This time of night the place was nearly empty.  Lou was wiping up, the TV was dark.  Two regulars quietly nursed beers and shots at the bar and a couple were wrapped around each other in a side booth.  Freeman took Lightner to the back, to another booth.  When Lou started toward them, Freeman waved him away.