The 13th Juror (8 page)

9

Jennifer soon realized that she and the people here weren't so different.  She had not expected that.  They weren't so tough or scary as they'd seemed when she'd first been brought in.  And they were beaten down, caged, for the most part docile.  Just like her.

Not that it was a knitting bee.  There was constant vulgarity, but she found that almost comforting — an acknowledgment of shared feeling, of being in this together.  This was their language in their world and to hell with anybody who didn't like it.

Nobody seemed to care at all whether or not she was guilty of killing her husband.  But when they heard about her son… well, it got real to them.  She could tell, and she couldn't blame them.  Everything, though, still seemed unreal to her.

The night before, after her older money-hungry lawyer had gone away with the nicer young one, she had cried on the top bunk of her cell for hours.  At 3:00 p.m. they locked everybody back in the cells and had what they called count to make sure no one was missing.  That took the better part of the hour, and then they brought the food.

By then Jennifer thought she was all cried out.  Without really thinking about it, she took her tray and her plastic utensils and followed some of the other women out to the large common room, the tank.  She set herself down at one of the tables under the television set.

She couldn't eat any of it — meatloaf, gravy, fake mashed potatoes, peas, three slices of bread.  Larry would have thrown the plate across the room, especially with the gravy slopping over into the peas and the bread.  She found herself crying again.

"You best eat up, honey.  They's worse shit than this."  It was a tall, almost stately black woman.  "This your first time?"

Jennifer hadn't even been sure what she was talking about.  First time she'd had meatloaf?  First time she'd cried.  She hung her head, shaking it from side to side.  "I don't know, I just don't know…"

The other woman, Clara, didn't pursue it.  Whatever Jennifer didn't know, it was all right with her.  She sat down next to her, even asked permission, and started to eat, saying she was in — again — for thieving.  "What you in for?"

Jennifer put a fork into the meat and brought it to her mouth.  There was no taste, good or bad.  "They think I killed my husband."

Clara nodded, unimpressed.  "Shit, prob'ly deserved it, am I right?  How bad he beat you up?"

"I didn't say that.  He was a good man, a doctor, and I didn't kill him."

"Course you didn't."  Clara went back to her plate.  "Don't worry.  Say he beat you, they let you go.  You see.  Get out of here, no problem.  Things work out.  Nothing to cry about."

Jennifer didn't mean it, but it came out.  "I miss my son."

Clara put down her fork.  "I know.  I miss my baby too — Rodney just two, but he be some beauty.  They don't give me more than a year, so I do five months and twenty days and Rodney stay with Else, my sister.  She good to Rodney.  Sometime he too much for me, so this be maybe some kind of vacation.  For us both.  May be that's God's plan."

Jennifer shook her head again.  "My baby's gone," she said.  "He's dead."  She felt Clara stop eating next to her.  She put a hand on Jennifer's shoulders, her black eyes liquid and soft.  "Oh, child."

"They think I killed him too.  It's crazy… They say he came in while Larry and I were fighting over the gun, or something like that.  It's so stupid,
crazy
…  And there's no bail."

Clara took her hand away.  Her voice was hoarse and low.  "I never heard of no bail."

Jennifer told her she'd heard of it now.

"You sure?  The done the hearing?  Yeah, 'course they have.  Oh, honey, I'm so sorry.  How old your boy?"

"Matt.  He was seven.  They tell me they're going to ask for the death penalty."

"For you?  Well, you lucky there."  The news seemed to pluck her up.  Jennifer stared at her, uncomprehending, and Clara explained.  "You the wrong color for that, girl.  The don't give no gas to no white woman look like you."

*     *     *     *     *

At breakfast there was Clara and the other new white woman, Rhea (grand theft).  And Mercedes (murder) and Rosie (aggravated assault) and Jennifer.  All of the men and women on the seventh floor were either awaiting trial or, convicted, waiting for their trip to state prison or another facility.

Mercedes was going to trial in a couple of weeks and had been in jail for four months.  She had finally stabbed her no good husband because he'd been running around on her.  Rosie, who had beaten her boyfriend with a rolling pin, didn't have two thousand dollars for bail.  Her trial was in six days and she was sure no jury would convict her.

Rhea was about Jennifer's age, size, hair color, but all the beauty had been used out of her.  She was telling them how her husband had been pimping her out and they'd gotten lucky (or unlucky) with a john who'd lost his wallet with nearly a thousand dollars in it.  "That's why they went for the grand theft."

"They always lookin'," Clara said.

"What's you bail?" Jennifer asked.  She had been giving more thought to bail lately.  If she had three-hundred-thousand dollars and could get out of jail for a third of that, she could take the other two-hundred-thousand and disappear for a long time.  Forever.  Why did she want to spend it on David Freeman, just give it to him?  It didn't seem right somehow.

"Five thousand," Rhea answered.  "So it's takin' Jimmy a day or two to get it together.  It's cool.  We talked about it."

"You mean you boyfriend, he'll bring in five thousand dollars and you'll just go home tonight or tomorrow and that's it?"

"This girl got no bail."  Jennifer was Clara's story and she wanted to tell it.  "No bail at all."

Rhea, ignoring Clara, seemed to smell something.  Something with Jennifer.  "You got no bail?  Is that true?  Don't you want out of here?"

"Amen to that," Mercedes said, "Everybody want out of here."

"'Cept me."  Rosie, who had nearly killed her boyfriend, was the youngest of them, a diminutive, sweet-faced Hispanic.  "I stay in here as long as they let me."

"You want that?"

Rosie's black eyes shone at Jennifer.  "I want to be where I don't get hit no more."

"Amen," Mercedes said.  "Amen amen."

"I get out of here," Rosie continued, "next day somebody's going to be hitting me.  Next time he hit me I think I keel that son-of-a-bitch.  So here" — and her face brightened — "I'm safe.  Nobody hit me.  I can't hit nobody back.  I stay a while here.  I think."

One of the guards, with a tag on her chest that read "Jessup," was moving their way.  The talking stopped.

She came over to them.  "You ladies having a nice time?  Sure sounds like it."  She tapped the table gently with her nightstick, her mouth becoming a thin line, nearly invisible.  "Finish it up, now.  Let's eat up."

Jennifer heard her name called over the loudspeaker.

*     *     *     *     *

Freeman was not sitting.  Nor was Hardy.  Jennifer looked defiantly up at them both.  Freeman, who had obviously been through this sort of thing many times before, spoke matter-of-factly.  "Typically, a full-scale murder trial will run to between half-a-million and a million in legal fees, so yes, I'd say your retainer will be spent."

"Then what?"

"Then what what, Jennifer?"

"After it's gone."

"Then we go to the court and get paid by the state."

"Couldn't they still just pick a public defender then?"

Freeman nodded.  "They could, but they won't.  They don't want some new defense team coming in and spending a year getting up to speed.  By that time we'll know the case inside out and the court will stay with us."

"How about if we just don't mention my… my secret account?"

Freeman was shaking his head, pacing.  "Jennifer.  Without your secret account there isn't any money to begin with, so the court
then
appoints whoever it wants, and you've already said you don't want that.  You know, I'm afraid I don't really understand your problem here.  You're going on trial for your life, Jennifer.  And you're talking about money you'll never be able to spend if you don't have the best representation and, frankly, maybe even with it."

"That'a'way, David, Hardy thought, sugarcoat it.  He did understand that Freeman felt he had to give Jennifer a dose of reality, but her response made Hardy feel that he was going too far.  Her head was going back down in that cowed way she had; she was blinking back new tears.

Freeman appeared unaffected by this display, but he did stop in front of her and speak more quietly.  "Jennifer, look at me, okay.  Look up.  All right, now listen.  We are going to do our best to get you off here.  That's what I do — it's my specialty,  you might say.  And as soon as you're found innocent you collect some five-million dollars insurance money.  But if you're not found innocent… well, you don't get any of your money, insurance or secret account.  Plus you could face the extreme penalty.  So what's it going to be?  You decide."

She swallowed hard and, for a moment, studied the table in front of her.  "The only thing is, Mr. Freeman," she whispered, "isn't it true that if I retain you, I won't have enough money for bail?"

At first it didn't even register.  A minute earlier Jennifer Witt had been rocked.  Or seemed to have been.  How her eyes were clear, her head was up.

Freeman noticed, too.  This lady was nobody's fool.  Now, suddenly, there was a sense of gamesmanship in the tiny room.  Hardy was outside of it, but Freeman sat down and leaned toward her.  "Good," he said, "good."

"Good what?"  She leaned away from him in her folding chair, an elbow going over the back of it.

Freeman ignored the direct question.  "
If
we can get bail, which you remember has been denied already.  You're thinking a hundred-thousand pays the bondsman and you can get out and jump, isn't that it?"

Jennifer, still sitting back, silently met his gaze.

"You think your house is worth a million dollars?  I remind you that you didn't think it was yesterday.  The three-hundred-thousand in your secret account won't do it.  And neither will the insurance.  You'll need at least a million that's relatively liquid.  And no matter who represents you and what you pay them, this is reality.  Bail is a waste of time.  Even if you get it, you can't pay it."

"Which means I'm here until my trial is over?"

Freeman nodded.  "I'm afraid that's what it means."

Jennifer took that in, pulled herself up to the table, and crossed her hands in front of her.  After a minute, surprisingly, she began to smile.  It was the first smile Hardy had seen from her, and it was quite lovely.  "I'm going to have to think more about this."

Hardy started to interject, but Freeman put up a restraining hand.  "Fine, Jennifer, fine.  Shall we just withdraw as your attorneys now?"

"No!  I don't want that.  Can't I just have a little more time to be sure?"

"Jennifer, a retainer is needed.  The court will need to know that you're represented at all times.  If it's not me, as I've told you, they'll appoint somebody, and until your personal money's gone you'll have to pay them too."

"Could I pay some say twenty-five thousand now and the rest by Monday if I decided to go ahead—?"

"As opposed to what? 
Not
go ahead.  Do you want to plead guilty?  If, and it's a big if, the DA will deal, it will probably mean life without parole."

Again, Hardy couldn't read her.  Her eyes were bright, alive.  Scared, a brave front?  Or…

"I don't know."

Now Hardy felt he had to say something.  "Jennifer, pleading means you say you did it for  a lesser penalty.  You realize that?"

She nodded slowly.

"But you've been telling us — adamantly, as a matter of fact — that you didn't.  Now which is it?"

"Diz, it doesn't matter," Freeman said.  "Not now."

But Hardy had had enough of Freeman's "professionalism."  He was starting to get involved in the facts, in belief or doubt, in his own motivations, and in Jennifer's personal story.  He slammed the table top with a flat hand, raising his voice.  "Damn it, David, it matters to me!"  He went back to the client. "Now which is it, Jennifer?  And whatever it is, let's stick with it."

Jennifer hung her head for a moment or two, then raised her eyes.  "Maybe I don't think I can win.  Wouldn't that be a good reason to plead?"

Freeman said "yes" at the same instant Hardy replied, "Not if you didn't do it."

"Well, I
didn't
do it."

Hardy straightened up.  "All right, then."

As though they had decided it long ago, Freeman opened his briefcase and removed a piece of paper.  "Okay, Jennifer, we're in business."

10

Hardy was at Lou the Greek's, finishing his coffee and calling it lunch, having long since given up hope that what he had ordered would become edible.  Lou's wife was Chinese and she did the cooking — some of it delicious, all of it unique — but today's special of Sweet & Sour Dolmas just flat didn't sing.

In nearly two hours of discussion with Freeman and himself, Jennifer had not budged — she was innocent.  They were not going to plead guilty even if they could.  Which, in its own way, was good.  At least it eliminated any ambiguity.  Jennifer was sticking her attorneys with the classic passive, negative defense — at every turn, demonstrate the weakness of the prosecution's case; the burden of proof was on the prosecutor and Freeman's position was going to be that they had not met that burden.  Period.

Except, of course, nothing was really that simple.  As both Hardy and Freeman had tried to point out to Jennifer, the prosecution's case, on the face of it, was not so thin.  They had physical evidence, putative motive, even eyewitnesses.  This was not, they had argued, some high-handed political vendetta come home to roost.  Nobody had been out to get Jennifer Witt — the evidence had persuaded the grand jury to indict her, and it well might persuade a jury to convict.

The charges involving her first husband Ned made it much worse.  The evidence might be older, but the coincidence factor, if that's what it was, to say nothing of the presence of significant insurance money in both instances, would be daunting to overcome.

At the same time, though, Jennifer's position gave Freeman a strategy and Hardy a concrete direction.  Given their client's demands, there was only one course, time-honored and true, that they could take.  Find the holes, if not in the facts, then in the arguments interpreting them.

*     *     *     *     *

The fog had burned off but, lest SanFrancisco bask in sunny warmth, the wind had come up off the ocean.  Hardy stood in the outside stairway four stories up the Hall of Justice, listening to it howl through the structure that one day would be the new jail just across the way.

Abe Glitsky opened the door and stepped outside.  Papers swirled and dust eddied.  He took it all in.  "I've got a nice office not a hundred feet away.  Remember?"

"Powell's in there."

Glitsky nodded.  "All too true.  He works in this building.  Which, I might add, you don't.  Exactly what are we doing here, Diz?"

"We're having a secret meeting, Abe.  I wondered if you felt like taking a ride with me?"

Glitsky's hands were in the pockets of his parka.  He pursed his lips and the scar through his lips burned white.  "Middle of the week, middle of the day, sure.  I'll just take off.  Nobody'll miss me.  I don't do anything anyway."

"Abe, I need you to prevent me from committing a felony, which if I do and get caught—"

Hardy stopped him.  "Please, Abe, this is a critical time for my life and career.  If I commit this felony, and if I get caught, I'll lose my license, get disbarred, Frannie will probably divorce me, the kids will have to live knowing their father's a criminal.  Even talking about it, my life flashes before my very eyes…"

"Your very eyes."  Glitsky shook his head and the wind gusted.

"Come on," Hardy said.  "Won't even take an hour."

*     *     *     *     *

"Why do I do these things?" Glitsky asked.

"I think you've got a deep-seated need to prove yourself.  I worry about it sometimes.  I really do.  A guy your age."

"My age is your age."

"I know, but I'm younger.  I look better, too.  It's funny but it's true."

Glitsky chewed his cheek.  "Sad."

They were in the lobby of the Bank of America at the corner of Haight and Cole.  Hardy had given Jennifer's power of attorney to the vice-president, a young black woman named Isabel Reed who did not appear to have any problem with Glitsky's age or looks.  She had been checking on the ATM withdrawal on the morning of December 28 and returned with the news that the account had been accessed at 9:43 a.m., and since they were talking about times anyway, she'd be getting  off at 4:30 if there was anything else they needed to talk about…

Hardy said no, he thought that was about it, that she'd been a big help.  He nudged Glitsky and they started to turn to go..

"I'm here every day," Ms. Reed offered, "if you need anything else."

"You know…" Hardy stopped, just now remembering.  "There is something if you wouldn't mind.  Abraham, you think we should calibrate this thing?"

This, as Hardy had explained to Glitsky on the way out here, was why he had to come along.  Glitsky's badge got them access not just to Jennifer's account but to the whole automated system.  While an obliging bank employee ran receipts out of the ATM, Hardy dialed POP-CORN — the number provided by Pacific Bell that police used for the "official time" of emergency calls to 911 — and checked it against the bank's computerized clock on the ATM.

They found that there was a three-minute difference between the times — 2:11 at the bank and 2:14 from Pac Bell.

"Is that important?" Ms. Reed asked Abe.  Hardy had ceases to exist altogether.

"It could be crucial," Glitsky admitted, "in this case.  But you should have it checked in any event.  Records aren’t much good if they're not accurate."

Ms. Reed, nodding and attentive receiving this wisdom, thanked them both and gave Glitsky one of her cards.  Then, clearly as an afterthought, she pulled out one for Hardy, too.

Outside, the gale blew and both men leaned into it.  "
That's
why you do this," Hardy said through his clenched teeth.  "Records aren't much good if they're not accurate."

Glitsky, happily married with three children, couldn't stop smiling, something he did perhaps twice a year.

Driving back downtown, Glitsky finally spoke.  "I give up," he said.  "What felony have I prevented by this astute police work?"

Hardy answered straight-faced, "Plan
B
was for me to dress up like a Ninja, break into the bank in the middle of the night and do the cross-check.  Plan
B
wasn't very good.  I didn't think it would work."

Glitsky shook his head, withholding comment.

Hardy did some figuring.  When Mrs. Barbieto had called 911 at 9:40, it had been 9:37 at Haight and Cole.  If Jennifer had left two minutes before the 911 call at 9:35, which was Mrs. Barbieto's testimony, she would have to have run 1.7 miles to the bank and access her ATM at 9:45, eight minutes later.  She couldn't have done that.  If, on the other hand, as Hardy surmised, it was more like five minutes between the shots and Mrs. Barbieto's call to emergency, Jennifer would have had eleven minutes, three plus eight, which was fast but, Hardy thought, doable.

Glitsky, not knowing why, had been right.  Ms. Reed's ATM information could prove to be important, maybe even crucial.

*     *     *     *     *

He had to go upstairs to the jail again, because although Jennifer had given him permission to enter her house, he had neglected to pick up the key, which the sheriff was keeping with the rest of her effects.  Hardy needed Jennifer's signature so the sheriff would release the key to him.

"Mr. Hardy, is it?"

The hand was out and Hardy took it.  It was a surprisingly weak grip for such a big man — Ken Lightner, Mr. Clairol with his brown hair and red beard, Jennifer's psychiatrist, was standing inside the bars by the elevator as the door opened.

"I was just visiting Jennifer.  We've got to get her out of here.  She doesn't belong in that… you are here to see her, aren't you?"

Hardy explained about the key.  He didn't warm to this man but he could be polite.

"Actually," Lightner said as the elevator closed, "perhaps it's fortunate that you're here.  I was going to call you."

"If it's about Jennifer you should try David Freeman.  He's her lawyer in this matter."

"Well, Freeman," Lightner paused, began again.  "Jennifer seems to have a higher opinion of you."

Hardy shrugged.  What was he supposed to say to that?  He'd let Lightner figure out where he was going.

"I mean, you're representing her, too, aren't you?"

"I have to tell you that if either you or Jennifer thinks I'm anywhere near the trial lawyer that David Freeman is, you're both mistaken.  David's a little abrasive, okay, but that's mostly just his style.  He doesn't get beat too often, and that's where Jennifer's interests lie."

"What if she just likes… feels more comfortable with you?"

There wasn't much room in the area between the elevator door and the bars, but Hardy backed away a step.  "This is not a comfortable situation, Doctor.  I'm working with David, for David, I'm not that involved in Jennifer's defense on the guilt stage, and I'm a little confused about your role in all this.  Did Jennifer ask you to talk to me?"

"Not directly, no.  I'm not interested in offending you, Mr. Hardy, but my main concern is Jennifer.  She's lost, upset, grief-stricken… she's very, very unhappy—"

"She's in jail, Doctor."

Lightner turned his head abruptly.  Impatient.  "No, no.  I don't mean her situation now, here."  He got a grip on himself, spoke more quietly.  "Look, Mr. Hardy, she can't stay here.  I don't think she'd survive a year, whatever it might be for the trial, in there.  Have you seen… of course you have.  You know what it's like.  And Mr. Freeman tells her to forget about bail.  Why?  Is that in her best interest?"

Hardy was losing some of his own patience.  "It's about reality, Doctor.  I'd advise the same thing if I were the primary cousel representing Jennifer.  I'm afraid she's not going to get bail.  She's not getting out."

Lightner shook his head.  "If she stays in jail I believe it's not unlikely that she will kill herself."

"You're talking to the wrong person.  You should be talking to the judge… or the legislature.  Besides, I think that's a little extreme.  Jail's rough, no question, but I certainly didn't see any sign of suicidal depression this morning and I was with her for two hours."

"Would you know it if you saw it, Mr. Hardy?"

Hardy knew he had a point there, but the man was getting to him.  "I think so.  Now if you'll excuse me—"

"No, listen, listen
please
."

Hardy waited.

"I'm sorry.  Maybe we've gotten off on the wrong foot, but somebody's got to understand what's really happening here," Lightner said.

"And you know?"

"I know.  I've been treating this woman for four years.  I've had to prescribe anti-depressant drugs during crises.  Jennifer is clinically depressed."

An obvious if ingenious thought occurred to Hardy.  "Well, Doctor, if she'd been depressed for four years, it isn't jail that's doing it to her."  Hardy glanced at his watch.  "Now I've really got to go.  Sorry."

Lightner touched his arm and took a deep breath, as though making up his mind about a major decision.  "Suppose I told you," he said, his voice low now, "that she may have actually done it.  Don't you want to know
why
?  It's what this is all about."

*     *     *     *     *

"You said you noticed it yourself… one minute she's so smart, almost playful, the next she's like a beaten victim — head down, uninvolved, at sea.  She has no appetite, she's subject to extreme mood changes, lethargic to hyper-active.  Nightmares ruin her sleep.  All of these are classic signs of clinical depression."

Hardy had gone with Lightner to pick up the release — the reason he'd come up here in the first place — and they had ridden together down to the third floor, the DA's floor.  Hardy, who used to be employed in the building, knew a few of the private spaces, and he brought Lightner now into the reporter's room just off the hall by the elevators.

Here, on a Thursday afternoon, there was no peace.  No reporters, no other people.  A comfortable clutter amid recycled school desks and old pitted library tables.

But Hardy's main interest wasn't in Lightner's diagnosis of Jennifer.  "It still doesn't mean she killed anybody."

Lightner was sitting forward on one of the tables next to the slatted window.  "No, it doesn't of itself, but I'm telling you now… I'm afraid she did kill her husband."

"You're sure of that?  She tell you?"

"No, but I know."

"And her boy?"

"I don't know how that happened.  It could have been a mistake.  She might have thought he was Larry."

"A seven-year-old boy?  Her own son?"

"I said I don't know how it happened.  The boy might have gotten between them, the gun went off, I don't know, some terrible accident."

Hardy didn't like to admit it, had in fact avoided this conclusion each time it had surfaced before now, but Lightner had a point.  Every day people got killed by mistake with firearms.  You put a gun in the picture, you got the possibility of an accident.  Hardy could invent half a dozen scenarios himself that might have resulted, accidentally, in Matt's death.

"Except she denies it," Hardy said.  "But, for the sake of argument,
how
do you know? 
Why
?"

Finally, an open question.  Lightner pushed his well-tailored bulk back onto the table.  Sunlight cut steeply through the motes by the one window, fell across the psychiatrist's face, highlighting reds in the handsome beard.

He sighed, his fists clenched.  "The simple answer," he said, "is
to stop Larry from beating her
."

Hardy was cramped into the seat of a one-piece, old-fashioned school desk, complete with built-in inkwell, around which he was running his finger, leaning back, legs stretched out straight in front of him, crossed at the ankles.  "She says he didn't beat her.  She says they fought like everybody else but—"

"Of course, she says that.  But it's not true."

"It's not true," Hardy repeated.  "How do I know it's not true?"  He held up his round-the-inkwell hand.  "No, I'm not starting in again.  I'm asking if you've got any proof, any corroboration.  Jennifer's admission?  Anything?  I presume you're telling me this to give her an out, an excuse that might clear her if she did it."