The 13th Juror (43 page)

Hardy had had his fill of Dean Powell.  He wanted to slink back to his office, but Inspector Walter Terrell suddenly was standing in his way.  Mr. Theoretical.  But Hardy couldn't very well condemn him for that — he himself had fallen into the same trap.  Because something
could
have happened didn't necessarily mean that it did.  Or, in any case, that it could be proved.  His job, the trust he'd taken on, was to prove, not speculate.  He'd lost track of the obvious.

"They sent me down to get you," Terrell said enigmatically.  "There's somebody upstairs asking for you."

He stopped.  It never ended.  What did Jennifer want now?  How did she get upstairs so soon?  Then another question popped up:  Why was Terrell giving him the message?

"On seven?" he asked, meaning the jail.

"No, four."  The fourth floor was homicide.  "We're talking to Mrs. Witt's mother.  Her dad died a couple of hours ago.  She wants her lawyer.  Abe Glitsky told her he thought he knew where you might be."

*     *     *     *     *

Nancy had volunteered to come down.  Homicide lieutenant Frank Batiste as well as Glitsky and Sean Manion were on hand.  Nancy was not being charged with anything yet in the death of her husband.  No one argued that she had killed him, but they needed her statement, even if it was self-defense.

Nancy was sitting in a yellow leatherette chair at the table in one of the interrogation rooms.  Dressed up, with black eyes and a bandage across her nose, she could have passed for thirty-five, much as her daughter on a good day could pass for twenty.

Barely nodding to the assemblage, telling everyone that, first thing, he needed five minutes alone with her, Hardy entered the room and closed the door behind him.

She smiled weakly, greeting him.  He saw immediately that her breathing was shallow, her color bad, too pale.  "Are you all right?  Should you be walking around?"

She nodded.  "They let me out this morning.  I'm just a little weak.  I thought this would help," she said.  "Anyway, if I came down here, maybe I could see Jennifer."

"We can probably arrange that.  But what do these guys want?"

She shook her head.  "I don't know.  The inspector I saw in the hospital — Manion? — he said they weren't going to charge me with anything, and then when… when Phil…"  She forced a breath.  "Anyway, after Phil died the younger man came out and asked if I'd cooperate."

"If you'd cooperate?  He said that?"

This wasn't adding up.  Either they were going to charge her or they weren't, and either way there was no point in getting her downtown in her condition to sit in an interrogation room at the homicide detail.  He also wondered about the party outside — Bariste, Glitsky, Manion, Terrell.  Everybody hanging around waiting on an interview with a woman they weren't going to charge with anything?

"Have you talked to them yet?" he asked.

But before she could answer, there was a loud buzz outside, clearly audible even inside their room.  They stood and Hardy opened the door.  The District Attorney himself, Christopher Locke, had come in, trailed by Dean Powell and half the television cameras in America.

It was all getting clearer.

Hardy didn't look at Locke.  Their feelings about each other had been aired the year before.  He walked into the main room, around Locke and up to Powell.  "You know, Dean, this is pretty outrageous.  Not to mention insulting."

Terrell stepped forward, out of the pack, explaining to Powell:  "She asked for her attorney." 
Why should Terrell be explaining to Powell?

"I don't know what you're talking about," Powell said to Hardy.

"I'll tell you what I'm talking about."  The room continued to backfill with camera-wielding humanity.  "I'm talking about this media circus.  I'm talking about using this woman's" — there was Nancy, standing by the door — "about using this woman's personal tragedy so that the jury in her daughter's trial can read about it with their coffee tomorrow morning, and not incidentally so you can be on television again just before election day."

"That's ridiculous."

"I don't think so, I think it's on the money.  I think you had Terrell sitting in the wings at Shriner's in case Jennifer's father died so you could drag his wife down here in front of the cameras… Like mother, like daughter.  Right?"  Hardy wished California sequestered its juries.

Frank Batiste was a no-nonsense professional cop who was out-gunned by the brass here, but he was in charge in this room, his domain.  He moved forward toward the press of media.  "Would all of you please step outside the door now?"  He was herding them, prodding.  "Just back up there.  Thank you."  When the last camera had gone, he closed the door and turned back to the room, suppressing a smile.  "I'm sure they'll wait."

Locke thought he was trying to take charge.  "It's the District Attorney's decision whether or not to charge a person with a crime, not the police department's."

"Hey, I already wrote it up."  Manion, DA or no DA, had done his report and he wasn't about to stand by while his professionalism was questioned.  "If this wasn't self-defense, you can have my badge."

"I'm not saying it wasn't."  Locke as usual, in Hardy's view, was temporizing until he saw which way the wind was blowing.  "But it is my decision."

Hardy didn't dispute that, but it wasn't the issue.  "Why is Dean here then, Chris?  You want to explain that one?"

This drew blood, but Locke recovered quickly.  "Mr. Powell is a Senior Assistant District Attorney.  He's got every right to be here."

Batiste took another step forward.  "No question, sir.  So you've decided to charge this woman?  You want us to take her upstairs and book her?"  Hardy didn't know Batiste well, but suddenly he decided he admired him.  There was no irony in his tone; in fact, it was punctiliously correct.  He was telling the District Attorney that if he had his facts right they should proceed with the next administrative step.

He was also calling Locke's bluff.

The District Attorney stood there flat-footed.  The room, even without the media, felt jammed and overheated — Locke, Batiste, Powell, Terrell, Manion, Nancy, Hardy, three other homicide guys who happened to be there when it began.  Locke for the first time looked at Nancy DiStephano, who was leaning wearily against the doorjamb to the interrogation room, her arms crossed, protecting her broken ribs.

"I haven't read the arresting officer's report," Locke said.  "I was under the impression…"  He stopped.  "After I read it, I'll make my decision."

Powell followed him out, "no commenting" all the way down the hall.  In the homicide room there was a long silence.  Finally Batiste spoke to Terrell.  "The District Attorney's office hires its own investigators, Walt.  You want to be one, go apply.  I'll expedite the paperwork."  He walked into his office.

Hardy walked back over to Nancy, who by now looked to be on the verge of fainting.  Hardy got her to the chair, helped her down.  She was panting from the exertion.  Glitsky joined them.  "She could have called Freeman or you.  I told her you were probably closer."

Hardy put a hand on Glitsky's shoulder, squeezing it, a thank you.  "How about I take you home, Nancy?"

She was obviously in pain but she looked up at him, shaking her head.  "Would you mind?  I'd like to see Jennifer if that's okay."

*     *     *     *     *

After a short rest she felt she could handle the walk to the elevators, the short ride to the seventh floor.

When she got out of the elevator into the barred bullpen outside the heavy doors of the jail, Nancy put her hand to her mouth, a caricature of shock, except Hardy was certain it was genuine.  There was the liniment of sweat smell — familiar to him.  The way the sounds rang if they were close by — the elevator, the lock in the bullpen door, keys jangling.  Far off, half-heard, haunting, voices were muffled yet the low hum was constant.  They heard somebody scream, the crash of something being thrown.  It was dinnertime.

Nancy clutched at his arm.  "I didn't know it was…"  She didn't finish.  She didn't have to.  Nobody knew what it was like until they'd been there.  "I should have come down, but Phil…"  Hardy knew that one too — Phil wouldn't let her.

He'd gotten permission for Nancy to enter the tiny attorney's room at the women's jail.  He was by the door as it opened when they led Jennifer in.

Nancy was sitting across the small room.  She bit her lip, her face tilted up.  The door closed.  "Did they tell you about your father?"

Jennifer nodded, her hands flat against her sides. Nancy stood up, took a tentative step forward toward her daughter.

"Jenn…"

She barely whispered it.  "Oh, Mom…"

They stood there, unmoving.  Nancy held her hands out and Jennifer moved to her uncertainly.  They came together, embracing, Nancy's arms around her daughter's neck, her face twisted with the agony of her broken ribs but not letting go, squeezing, from Hardy's perspective, as tight as she could.

*     *     *     *     *

"I have to find it."

"No," Freeman said, "you've got to drop it."

"I don't have anything else.  The woman doesn't have any friends.  She's got a mother, but that's the only trace of her past.  She's legally as sane as you or me.  This is the only chance.  I've got to pursue it."

They were in Hardy's office.  It was closing on eleven.  He had remained in the interview room, a fly on the wall, for the hour that mother and daughter had talked or, more precisely, tried to reestablish some connection.  It had been strained a lot of the time, with long silences and frequent tears, but they had held hands throughout and everything was personal — they never mentioned Jennifer's case.

After leaving the jail and making sure Nancy was okay to get herself home in a cab, he had come directly here.  Freeman, of course, was working late, already on a new murder as well as prepearing Jennifer's appeal.

Now Freeman was listening to his tenant and sometime partner, who had swept half his files off his desk and was raving out of frustration and fatigue.  "You know how many people I've talked to these six months?  And what do I have to show for it?  I've got Jennifer's mother and Jennifer's shrink, and the jury won't believe her shrink.  That's it.  That's my case to save the woman's life."

"You've got Jennifer herself."  Leave it to Freeman — he had eye for detail.

"Oh, there's a good idea."  Hardy, pacing, stepped over a stack of folders.  "Call Jennifer so she can look the jury in the eye and say, If you vote to execute me, then you can go fuck yourselves.  That'll soften 'em right up."

Freeman had gone around to sit behind Hardy's desk, in his chair.  "That's really all you've got."

Hardy stopped.  "That's what I've been trying to tell you, David.  She's totally separated from the world.  As if you didn't know.  She's too pretty to have other women trust her, and she's not the platonic type with me.  Except for her son she didn't seem to give kids the time of day.  After Ned killed her cat, she never even had another pet.  Juries love cat lovers.  Why didn't she get another one?  The fact is I haven't found a soul who's got anything good to say about Jennifer Witt."  Hardy leaned over and started picking up the files he'd thrown.  "I really think I'm right, David.  I know Simpson Crane found someone there screwing up."

"Do you also really think they killed Larry, or had him killed?"

"At least it's a reason."

"So is the abortion.  Remember.  We've been all through this, Dismas.  Didn't Jennifer's brother hate Larry, too?  And isn't the union squabble with Simpson Crane just as good as your scan idea?  Might he in fact have been killed over that?"

"I don't know, I have no idea what Restoffer found there."

"It doesn't really matter, but obviously it was enough to keep him interested all throughout the primary investigation, wasn't it?"

Freeman's point was clear enough, though Hardy wasn't in the mood to hear it.  He knew that any event in life could support an almost infinite number of possibilities, even plausible scenarios to explain them if imagination were the only criterion. Trials would never end so long as attorneys were allowed to introduce another way something
might
have happened without regard to evidence.  Which was why, overworked as they were, courts were intolerant of hearsay, fabrication, unsupported theories.

At a trial, somebody had to see it, smell it, touch it or taste it, then swear to it.  Because, in real life, it had only happened
one
way.  And the court's job, perhaps more than justice, was making sure the story was righteous, in synch with the evidence.

Hardy sat on the floor picking up folders.  "What am I going to do, David?"

"I wasn't entirely kidding before," Freeman told him.  "First I'd let her mother get up, but then I'd call Jennifer…"

"But
you
didn't even do that!"

"That was a different situation.  I had the luxury or thought I did.  You
don't
.  This is the last card.  The jury has got to get a chance to know her, see who she is beyond—"

"Powell will eat her."

"He well may.  She may condemn herself.  It's a risk."  He brightened.  "But then, life's a risk, my boy.  Besides, what's your option?"

47

The kids weren't awake yet — a miracle.  It was just past six and Frannie was reading the morning paper, in the middle of the story.  Even though charges weren't being filed, the mother of the convicted killer had killed her husband and that was hot news.  So Powell, in spite of Hardy's efforts, had achieved his goals — not only was his name and picture again on the front page, the jury would get a glimpse of how the DiStephano/Witt women solved their problems — they killed their husbands.

"They make it sound almost Biblical," Frannie said, "like some curse through the generations."

Hardy nodded wearily.  In his life he had probably been more tired but he couldn't remember when.  He hadn't gotten home last night until after midnight, hadn't been able to get to sleep for at least an hour after that.  "I just hope the jury doesn't see it that way."

Frannie put the paper down.  Something in her husband's voice…  "Are you going to lose?"

"It’s a possibility."  The prince of understatement.

Frannie wrestled with the awful thought.  "Can I do anything?"

"Like what?"

"I don't know, help you in some way, any way…"  She reached across the table and took his hand.  "I feel real bad about this, you know.  Like I've deserted Jennifer.  They convicted her.  What am I supposed to think?  What am I supposed to do?  I just couldn't keep on denying—"

"You don't have to explain anything to me, Frannie.  She's one difficult woman.  She drives people away."

Frannie bit her lip, squeezed her hand.  "What will happen?  I mean, if you lose?"

"If Powell get elected and stays on the case, her odds on appeal go way down.  He'll be the Attorney General and she's his baby.  I mean, even if he wanted to, which he doesn't, it would be hard for him, politically, to do anything but keep pushing."

"This is just so wrong."

Hardy covered Frannie's hand.  "It's not over yet."

*     *     *     *     *

He was going to have Nancy take the stand, then Jennifer.

A society reporter named Lucy Pratt was in the newsroom at the Los Angeles
Times
when Hardy called from Sutter Street an hour later.  That early in the morning, the place was deserted and she was happy to talk to somebody about her work.  A lot of people wanted to move on to hard news, but she loved being a society reporter.  She loved people.  She didn't like violence, world problems, all that stuff.  She told Hardy that sure, she knew who Margaret Morency was.  In fact, just the last weekend they had run her picture.  She and her fiancé had hosted a wine-and-cheese auction to benefit the San Marino library.

"For some reason," Hardy said, "I thought she was this old woman.  San Marino old money, you know?"

Ms. Pratt laughed over the line.  "Old money doesn't mean you're old, at least not with Margaret.  I don't think she's thirty yet.  I could fax you her picture.  She was one of the Rose Court in 1986, you know."

Hardy thought a picture wouldn't be necessary.

"The wedding's going to be at the Huntington in December," Lucy said.  "The whole town's talking about it."

Hardy doubted whether the folks, say, in South Central, were as excited about the upcoming nuptials as Lucy was, but she seemed to be a nice kid so he listened.  It seemed the polite question before he said good-bye so he asked it.  "Who's the fiancé?"

"It's a real Cinderella story," she said.  "Jody's from the west side, but down in the flats, not exactly Brentwood.  But now…"

"Is that Jody
Bachman
, the lawyer?"

"That's the lucky man.  Do you know him?"

"Sure," Hardy said.  "All lawyers know each other.  It's like a big fraternity."

Lucy laughed again.  She sure had good manners, though he doubted she got the joke.

*     *     *     *     *

He left a message with Restoffer.  Even with the cold he wanted time to think, so he walked across Market, a block out of his way down 5
^th
(you took your life in your hands on 6
^th
), to the Hall.  He rounded up Powell and they caught Villars alone in her chambers.

In that, he was fortunate, although she was less than delighted to see them.

"I hope you've got something prepared for today, Mr. Hardy," She began.  "I'm not entertaining any continuance motions.  You still want to see me?"

Hardy said he did, and she turned her back to him, going back to the slingback chair where she had been reading the paper, having her morning coffee.  But she didn't settle.  Instead, she lowered herself onto the outside of the chair and pointed a finger.  "The time for personal appeal is after the jury's decision."

Villars was referring to the orchestrated ballet that surrounded death-penalty cases in California.  Even after the jury returned with a verdict of death, that was not the end of it.  The defense filed an automatic motion for a new trial, on almost any grounds and without any prejudice — in other words, without a mistrial.  In the jargon, the judge became the thirteenth juror.

In practice, such motions were seldom granted.  If a judge, sitting as the thirteenth juror, did in fact overturn a verdict and a sentence after the time and expense of a jury trial, the DA — by exercising his right to challenge out of any courtroom — would make it hard for that person to find work.  Still, Villars was tough, and Superior Court judges, it was true, could amass a great deal of power.

Hardy remained standing.  Powell sat down, silent, listening.  "I wanted to get a ruling on something," he said, and told her what he had discovered that morning about Jody Bachman and Margaret Morency.  She didn't interrupt him.  "So, Your Honor, I have a member of the YBMG Board who called off Restoffer's investigation in Los Angeles, who is also engaged to the attorney for the Group.  I think the jury should hear about this."

Villars finally sat back.  "How did this woman call off the police investigation?"

"She called Kelso, the supervisor.l  He passed it along to the chief."

"Do you have proof of that?"

Hardy knew this was the tough sell.  "Ms. Morency both contributed to Kelso's campaign and is on the YBMG Board.  I know it was Kelso who called the chief after Restoffer interrogated Bachman."

Villars spoke slowly now.  "That's not proof."

"The standard is less in this phase, Your Honor.  I'm trying to get the jury to lingering doubt."

Villars waited for more.

Hardy gave it to her.  "Your Honor, these at least are facts,
not
conjecture.  Simpson Crane was killed with his own gun.  There
is
a connection, the Group — okay, it's tenuous, but it's there — between these men, and a line running through Jody Bachman, and a lot of money unaccounted for.  Crane's murder investigation is closed down.  The fiancé of the Group's attorney has access and leverage over Kelso.  Let the jury see all this and maybe they'll start to wonder about it.  It's not just my theory.  It springs from the facts."

Villars considered another moment.  "But it's a house of cards."

"May
I
, Your Honor?"  Villars nodded and Powell stood up.  "I took a hard line with you here, yesterday, Mr. Hardy, but in spite of what you may believe, I am not anxious to see anyone condemned to death.  So after we adjourned last night, do you know what I did?  I called down to Los Angeles and spoke to the head of homicide, who referred me to the chief of police.  The homicide department is
positive
, unquote, that Simpson Crane was assassinated by someone paid by Machinists' Local 47 down there.  It's not a closed case, although this Inspector Restoffer isn't on it anymore — it's gone federal with RICO.  There is — again I quote — no suspicion that he was killed by someone with the Yerba Buena Medical Group."

"Still, they called Restoffer off."  Villars was following it all closely, even taking some notes.

Powell sighed.  "Evidently the inspector was a little miffed at the federal intervention.  When he thought he saw a way back in — it's a high-profile case — he stepped on a few toes.  He was called off because he was hassling people, because he wasn't being a good cop."

Standing up, not in her robes, the judge might have been a friendly grandmother.  And her voice had no edge now.  "Mr. Hardy, I've listened carefully to you, one last time.  Now I'm talking to you and I hope you listen to me.  All of what you say may be true as far as it toes.  There may be all kinds of financial shenanigans going on down in Los Angeles, but it doesn't concern this case.  And where it might appear to intersect, it still falls under coincidence.  Larry Witt just wasn't involved in any of this, or if he was there's no evidence of it."

"He called Crane & Crane."

"About this?  Did he talk to Crane himself, or Bachman?  And if so, about what?  Is there any telling?"  She shook her head.  "I'm sorry, Mr. Hardy, I really am.  I can see you are trying your damnedest, as you should, but I'm not going to admit unsubstantiated theories, and that's what this is."

She was moving him with her toward the door.  "And now, please excuse me.  I've got two hours of brief I've got to wade through in” — she looked at her watch — "forty minutes."