The 13th Juror (7 page)

7

At seven o'clock Hardy was nursing a Guinness, waiting for Frannie to arrive by cab at the Little Shamrock, the bar at 9
^th
and Lincoln that he and Moses McGuire, his brother-in-law, owned.  Wednesday, by sacred tradition, was the Hardy's date night.

Before Hardy had returned to the practice of law he had been the Shamrock's daytime bartender for a decade.  Before that, he had been a you red hot with the District Attorney's office, married to a judge's daughter, starting out a family — Hardy and Jane Fowler and their boy Michael.

Michael was not supposed to be able to stand up at five months, so neither Jane nor Hardy paid close attention to whether or not the sides of the crib were pulled all the way or only halfway up.  That oversight took the boy from them.  He did manage to climb over the railing and fall onto his head.  The fall killed him.

After Michael's death, Hardy's world gradually fell apart, within and without.  Now, remarried to Frannie and with two new kids, he didn't feel like he was trying to recapture what he'd had — that was gone for good — but there was hope again, a future.  A meaning?  That wasn't Hardy's style, but not may days passed that he didn't reflect on how empty his life used to be, and how now it wasn't.

It wasn't clear to him where this fit into the professional turnaround he had taken in the last year, but there was some kind of a visceral bond that, he figured, had to be related.  A year ago, for the first time in his life, he had found himself taking the defense side of a murder case because he'd  become convinced that the defendant was innocent.

Several factors played into his hands during that trial — an inexperienced judge gave him unusual latitude in his arguments; an over-ambitious prosecutor brought a case that was not really locked up; Hardy, himself, had been angry enough at the DA's bureaucracy that his own motivation went into overdrive.  For these reasons, plus the fact that it turned out someone else had done the murder, he had won.  Now, after a lifetime during which he had sided with the People, he found himself, for the second time, a lawyer for the defense.

"No need to apologize," Moses McGuire said.  "You've become a bleeding heart.  It's okay.  You're still in the family.  We still like you."

Hardy checked his watch.  "Where could Frannie be?"

Moses swirled his MaCallan, a fixture in the bar's gutter.  "She's undoubtedly on her way, soon to arrive and save you from having to defend your basically untenable position against someone who's smarter than you."

"What's untenable?"

"Defense work."  Moses held up a crooked finger.  "Uh uh uh, you've said the same thing yourself.  More than once."

He found himself saying he wasn't sure Jennifer was guilty.

Moses snorted.  "Again I quote from a reliable source who happens to be sitting across from me at this moment:  'If they get all the way to arrested, they did it.'"

Hardy smiled.  "I was but a callow youth when I said that."

"And now you're mature?"

"Of course.  I've married your sister, started a family, settled down.  I'm a model citizen, and sometimes people get arrested when they didn't do it."

"How often?"

Hardy thought about it.  "Twice, I think."

His case won, Moses nodded to himself, then walked the length of the bar, schmoozing with the eight paying customers.  Wednesday night didn't get going until after nine, when they started the darts tournaments.  Hardy drank stout.

Even if he, himself, a few years ago would have said he was on the wrong side, he no longer felt that he was.  He could have told Moses he had seen what could happen with an overworked and undermanned police department, a DA's  office hungry for "numbers" — convictions.  Mistakes got made, simple venality or laziness or incompetence snuck in — maybe not often but often enough.  And he was starting to think that that's what he was in it for — when the truth needed the hurly-burly showcase of a public trial to get its face out there, and sometimes that was the only way it did, he wanted to be a part of it.  Balance of power.  Man against machine, and that's what the bureaucracy of prosecution was.  Abe Glitsky told him he had this tragic flaw of a fundamental need to continually restore order to a chaotic cosmos.  Glitsky could get fancy.  He wasn't sure he'd go that far, but, maybe there was something to it.

*     *     *     *     *

Hardy and Frannie sat with their feet in the recess under the table at a tiny place called Hiro's on Judah Street, a couple of blocks south of the Shamrock.  Frannie was drinking tea and eating tempura, avoiding the sashimi and sake because she was still breast-feeding, but the platter of ahi, oni, quail eggs and gooey-duck in front of Hardy was nearly empty.

Frannie did not need a dim light to be attractive, but the candle's shadows flattered her wondrously.  Hardy couldn't take his eyes from her face.  She was holding his hand across the table, talking about Vinnie's day, about Rebecca's expanding vocabulary.

He let her ramble on, feeling that if the Big One — the earthquake all of California expected at any moment — came right then and swallowed them up into the earth, he would die happy.

"Also, besides 'thumbnail,' listen to this, she said her first three-syllable word — 'gravity'."

"You want to tell me what context she used 'gravity' in?"  The Beck — Rebecca — was fourteen months old.  Up to this time she had shown almost no interest in physics.

"Her sippy cup fell of the table and she got all upset and I told her it was okay, it was just gravity, so she nods and stops crying immediately and repeats 'gravity'.  Naturally then she wanted to experiment with it about two hundred more times."

"Of course.  You wouldn't want to just let go of a concept like that.  What if Newton had?"

"We didn't get into that.  I just took the cup away."

Hardy pointed an accusatory finger.  "Negative reinforcement, Fran.  We've talked about this.  If later in life she blanks on gravity, you'll have no one else to blame but yourself."

Frannie sipped at her tea.  "I'm going to be able to live with that burden."  Suddenly they'd talked about the kids enough — the moment was palpable.  There were other items on the agenda.  "So how was
your
day?  Are you going to be working with David?"

To the tinkling background music, Hardy described his involvement with Jennifer Witt's case, the bail denial, everything — or almost everything.  He did not bring up his nagging doubt that all was not completely as it seemed with his new client.  He did, however, tell her about the existence of Jennifer's bank account.  "So she's got the money to pay us."  Then he tried to explain how she'd come by the money.

Frannie stopped sipping tea.  "You're saying she… stole it?  The money she's paying you with?"

"No.  Not exactly stole it."  Hardy pointed a finger.  "I like that thing you do with your eyebrows.  Scorn and rejection.  It's good."

"She didn't
exactly
steal it?  Please."

He gave up.  "Okay, so she stole it.  She had reasons.  It doesn't mean she's a bad person."  Trying for levity again, and again it soared like a tractor.  "Anyway," he went on, "it's at least a year of work.  Keeps my hand in.  And if David gets her off, which he often does with his clients, it's a good deal all around."

"What if he doesn't?"

"Well, if he doesn't, it'll be my job to keep her out of the gas chamber."

Frannie, like most people, wasn't too clear on how capital trials were handled in California.  Hardy explained that Freeman would conduct the first phase, the one that would determine Jennifer's guilt or innocence.  When that was over,
if
  Freeman lost, there would be a second phase, in effect a second trial, to determine one of two possible penalties — life in prison without the possibility of parole, or death.

Hardy was going to argue the second phase, if it came to that.

Frannie shook her head disbelieving… "You're kidding me.  That's a good deal?  That's my vision of hell."

Nope.

"It'll never get that far.  Don't worry about it."

"Can we write this down?  Dismas Hardy says it won't get this far.  I shouldn't worry about it.  I'd like a copy for my records."

Hardy carefully picked an oni with quail's egg from the plate in front of him and popped it, savoring the explosion of flavor.  "I'll have my secretary run one for you.  Look, Frannie, David's the best defense lawyer in the city.  He's throwing me a bone, that's all it is.  A big bone with meat on it."

"And what if she did it?  Then what?"

Hardy shook his head.  "She didn't kill her son."

"Somebody must think she did.  I've heard you say that people don’t get arrested unless they've done
something
…"

"I was wrong.  Now I've seen the light."

Fiddling a minute with her glass, Frannie finally looked up.  "This isn't all that funny, after all.  I mean, isn't it true that there's a case to be made that she killed her son, even if it was by accident or whatever?"

He had to nod.

"And a good case that she killed her husband."

"Well, a grand-jury indictment isn't necessarily—"

But Frannie had heard this song and stopped him.  "And what about her first husband?"

Hardy dismissed it with a wave.  "That's just the DA's numbers game.  They went back and literally dug that one up.  They didn't charge it first time around, they aren't going to prove it now after ten years."

"More famous last words," Frannie said.  "But what
if?
  What if all of the above doesn't happen as your predict?  Then what?  Or worse, what if it turns out she really did do it, I mean killed both husbands
and
her child?"

Hardy didn't like these questions, mostly because he'd asked them so recently to himself.  Jennifer's acting, posing, brains and plotting ability were not insignificant.  He didn't, of course, want to argue mercy for someone who didn't deserve any, and on the off-chance that Jennifer was guilty of these things, she didn't deserve a break today or any other day.

But, turning into a good lawyer, he had at least developed an answer he hoped would work in a penalty phase.  "If she killed her husband, I can argue that he beat her, which he apparently did."

"You know that?"

"I think so.  Though she more or less denies it."

"Well, that's heartening.  Very strong."

*     *     *     *     *

"Boy, this is fun."

"That's 'cause I'm a fun guy to be with.  One minute, nothing's happening, then whammo, suddenly it's fun city."  They were in their new Honda Accord — the jeep-like Suzuki Samurai a sacrifice to small children — cruising down Haight Street at ten o'clock at night.  He took her hand.  She gently removed it.

"Almost done," he said.  It was an apology.

From Hiro's they had decided to go back to the Shamrock to spend some time with Moses.  Frannie has been missing her brother, hadn't seen him in a week.

But first…

David Freeman did not like to use private investigators, preferring to do his legwork himself.  And with his current trial taking much of his time, he had asked Hardy to check out a few details relating to Jennifer Witt.

So before they went down to the Shamrock, Hardy suggested that he and Frannie swing by the house Jennifer, Larry and Matt had lived in, just to get the feel of it.  His copy of the folder was still in his car, so they looked up the address on Twin Peaks and it took them nearly twenty minutes to find it — Olympia Way.  Then, since it was right on the way, Hardy said he might as well measure the distance from the house to Jennifer's bank, where she had taken money out of her ATM.

Unfortunately, there were four banks on the revitalized old hippy thoroughfare and all of them had ATMs.  So Hardy was writing down mileages while Frannie commented on the good time they had been having for the past forty-five minutes.

The bank on Haight closest to the Witt house was just over a mile from their front door.  The furthest, all the way down near the border of Golden Gate Park, was about two miles.  Hardy had no idea if these facts would ever prove to be important, but felt more comfortable having them.  He liked to operate under the general principle that facts made a difference, even if you didn't always know, precisely, what that difference was.

"Good.  Now that we know that," Frannie exclaimed when he had written down the last numbers, "I'll be able to sleep tonight."

8

Hardy's own crack-of-dawn was literally that.  The telephone next to his bed rang at five-forty as the thinnest line of pink began to show out his bedroom window.  He got it on the first ring.

"This is Walter Terrell.  Wake you up?  Sorry.  Abe Glitsky asked me to give you a call.  What can I do for you?"

Hardy heard the young voice, noting the penchant some cops had for getting to you when you weren't ready for them.  He bet that Terrell wasn't really that surprised that he'd woken him up, nor sorry.  Five-forty was a little early for anybody except fishermen and most folks seemed to know that.  Even Hardy's kids still slept.

But he had him now, and this might be the only time, so he swung out of bed and padded into the kitchen with the phone.  "I thought we might be able to get together, talk a little about Jennifer Witt."

There was a pause.  Perhaps Glitsky hadn't told Terrell exactly who Hardy was.  Or his relationship to Jennifer.  But one thing was sure — Terrell knew Hardy wasn't with the DA's office.

"You doing her defense?" Terrell asked finally.

"Keenan counsel."  Hardy was pouring leftover coffee into a mug and pushing buttons on the microwave.  "Penalty phase."

"Yeah, I saw it was going capital.  You guys got yourself a bitch.  The case, I mean.  The perp, too, actually."

Hardy bit back his automatic response of "alleged" perp.  Hardy recalled when he had walked a beat — start saying "alleged" to cops about people they had arrested, pretty soon you'd find you weren't friends anymore.  He wanted to keep Terrell on his side.

"Well, this perp's maybe got a decent defense, but she doesn't want to use it.  I mean, it seems her husband had been beating her."

This evidently didn't change Terrell's world view.  "So?"

"You knew that?"

Hardy almost thought he could hear a shrug.  "Guys beat their wives, most of them don't get killed."

"What I'm saying" — Hardy pulled his coffee mug from the microwave, put in sugar, stirred — "is she could take the battered-wife defense and have a better chance of getting off, and yet she won't."

Terrell was silent.  To him, these were legal shenanigans.  His job was to deliver someone to the DA if there was evidence they'd committed a crime.  What the DA's office did after that was not his problem.  Finally he asked, "So, what did you want to see me about?  I assume you've read the file."

"Sure."

Terrell kept up the slow response.  "The file's the official record.  I'm in it.  Does it say anything about beating?"

"It said they were fighting."  Hardy felt rudderless, struggling to get his brain moving.

"Well, there you go.  Anything else?  I got a big morning."

"Did you find anything on this hit man?"

The voice dripped scorn.  "That's right, the hit man.  City's crawling with them.  No.  I didn't mention him for the same reason I didn't mention the motorboat."

"What motorboat?"

"The one that wasn't there, just like the fucking hit man.  There was a lot of things I didn't put in — space aliens, for example.  If you read the report, the hit man's there in her statement.  Hell, she's got to have something if it's her story somebody else did it.  What's she gonna say?"

"It’s so lame you'd think—"

"No.  It's just lame, all right, but that doesn't mean she didn't make it up all the same.  Perps make up dumb lies every day."

"But Mrs. Witt doesn't seem dumb, does she?"

"No," Terrell agreed, "no, I don't think she's dumb.  At least it aint an NHI — that's something, huh?"

NHI was shorthand for "No humans involved" — cases involving the scum of the earth — dope dealers, career criminals, sub-humans of all sorts.

Terrell was still on the line.  "But you know, we sent people to a lot of doors and asked and nobody saw a thing except the FedEx truck at 9:30 and the neighbor who saw Jennifer after the shots.  After the two shots."

"What about the driver of the FedEx truck?"

"This
is
all in the file.  What about the FedEx guy?  You think he's some kind of hit man took the driving job as cover for a day?"

"No, I—"

"Well, as we like to do, we checked him, too.  He's been with them for a couple of years, probably still is."

"No, what I wondered is if he saw Mrs. Witt in the house when he made his delivery.  What was he delivering, by the way?"

"It's the Monday after Christmas, what do you think?  Probably a late Christmas present.  You can ask him.  Did he see Mrs. Witt?  I don't know.  The husband signed for whatever it was."

Hardy could keep following this road until Terrell hung up on him in about another six seconds.  An overworked homicide investigator and a defense attorney was not a natural pair to begin with.  But he recalled Glitsky's comment about Terrell's fondness for theories and figured it was his only shot to get the man if not on his side then away from active hostility.  You never knew but when an investigator could tell you something important you couldn't otherwise discover.  As Glitsky had noted, some things just didn't make the file.

Hardy began again.  "One last thing if you don't mind.  What clued you to the first husband?"

"Well, maybe it's 'cause, bein' a cop an' all, it's my job."

The fuse was getting critically short.  Hardy had to come up with something or this guy was history.  "Look, Terrell, I want to know what I need to know.  I need some help, one cop to another."  At the silence, Hardy continued.  "I used to be a cop before I was a lawyer."

"Ah, the Glitsky connection?"

Hardy admitted he had walked a beat with Abe Glitsky after Vietnam and before law school.  He felt a little foolish trotting out the old résumé, but he knew what were likely to be buttons for police officers.  Sometimes it helped to push them.  "Anyway, this first husband, the guy was poisoned…"

"Ned, yeah."

"So what was that story?  I mean, how'd you figure it?  A gun and poison don't exactly point to the same perp."

The line of pink over downtown had widened to a blue band under low clouds.  The sun broke over the Oakland hills.  The coffee, old and strong, was kicking in.  From the nursery in the back of the house, Vincent let out his I'm-hungry cry, and there was the soft sound of Frannie's voice settling him against her.

Hardy has missed a few words but picked it up mid-thought.

"… insurance in both cases.  I just thought Ned was worth another look.  Turns out it was pay dirt."

"And you think it was Jennifer?"

"That's what ties 'em.  Ned
was
murdered.  Then Larry and the kid.  Her own kid.  Shit, I say fry her."

Rebecca came running through the kitchen doorway in her teddy-bear nightgown, attaching herself to Hardy's leg and announcing her choice for the morning's breakfast menu — syrup, juice, applesauce, syrup, pancakes, syrup and maple syrup.

"Sorry," Hardy said into the phone, "it's the invasion of the two-year-olds  But I'd like to talk about how you got this.  If it's righteous… I don't know.  I'd just like to find out."

Flattery, the great motivator.  Terrell said Hardy could pick a good time and they'd see if they could get together.

When he hung up, he asked his daughter if she wanted syrup with her pancakes.  She said yes, she did, syrup was her favorite.

*     *     *     *     *

It was all in the file.  Although Terrell told Hardy that they had sent out lots of people to question neighbors and other witnesses, he had interviewed the driver of the Federal Express truck himself two days after Larry Witt had been killed.

Frederico Rivera was the twenty-six-year-old Hispanic male who had delivered the package to the Witt house at 9:30 a.m. on Monday, December 28.  He knew it was exactly 9:30  for several reasons.  First, Larry Witt had signed his name, then looked at his watch and written in the time ("very precise uptight guy") next to the time (Fred) had already written on the delivery record — so they had two people corroborating 9:30.  But Fred had also been listening to Holiday Madness on KFWB where they were giving away trips to Hawaii if you were the ninth caller after they played the Solid Gold Oldie of the Day, which this day was "Two Faces Have I," by Lou Christie.  And they always played the Solid Gold Oldie at 10:30 sharp.  Fred remembered all this because it was only two days ago and the DJ had made a big deal about how they only had EXACTLY ONE HOUR left — so it had to be 9:30 — just as he'd gotten back to the truck, and he had been trying to figure his route so he'd be close to a pay phone at that last critical moment.

Hardy, sitting at the dining room table with his copy of the report that he'd photocopied in Freeman's office the day before, yelled in to ask Frannie if she knew who had sung "Two Faces Have I" and she said it was before her time.

It was still shy of seven o'clock.

"I'm only twenty-seven, Dismas.  Nobody my age knows that stuff."

"Fred Rivera does."  He told her about Lou Christie, about "Two Faces Have I," one of the great classics of the pop era.  He'd have to play it for her sometime if he could find it among his ancient 45s.  She said she couldn't wait.  He asked her if she'd ever hear the long version and then, smiling, went back to the file.

And discovered that none of Fred's or Larry's actions had been really necessary to pinpoint the time precisely — Federal Express uses computerized vans, and after each stop the driver entered the delivery information.  Terrell had checked — he might have theories, but he was also thorough — and the log-in had been at 9:31, giving Fred a minute to finish up with Larry and get back to his van.

Fred Rivera did not see Jennifer in her house at 9:30, but given his preoccupation with the Solid Gold Oldie, Hardy thought it was unlikely he would have paid much attention even if she had been parading around naked behind Larry.  Well, maybe then.  Hardy wondered where Matt had been.

So Fred Rivera hadn't seen anybody.  Neither had he witnessed any suspicious persons walking up or down the street — again, not that he was looking.

*     *     *     *     *

Mrs. Florence Barbieto called the police at 9:40, a "couple of minutes" after she heard the shots.  The houses on Olympia, though large, were set almost on top of one another, no more than fifteen feet between structures.  She had heard shots, then looked out her window to the house next door, thought about it for a while, walked over and rang the Witt's doorbell.  When there was no answer, she went back home and called the police.

Hardy thought that sounded more like five minutes than a couple.  Which meant that either the shots were fired at 9:38 or three or so minutes before then.  Could such a small detail make any kind of difference?  Maybe.  Maybe not.

The facts were beginning their slow accretion.  So were the possible interpretations.