The 13th Juror (30 page)

"No, I didn't."

Freeman paused and realized that this was about as good as he was going to get, and it wasn't all that good.  Giving the jury a confident grin, he said to Rivera, "Thank you, sir.  No further questions."

Powell, smelling blood, stood quickly and said he had a short question or two on redirect.  "Mr. Rivera, when Matt went running off with this package, what was Dr. Witt doing?"

"What was he doing?  I guess he took the clipboard, looked at his watch, signed it and gave it to me."

"Did he speak to his son?"

"No, I told you, the boy went running behind him."

"Yes, you did say that.  He didn't remind the boy, though, for example, that his mother wasn't home?"

"Objection!"  Freeman was up, shot from a cannon.

Villars pointed at Powell.  "Sustained, Mr. Powell, you know better.  Strike the last."  And she directed the jury to disregard the question, which they would try to do.  But Powell had done more damage, and he knew it as he graciously dismissed the witness.

*     *     *     *     *

Freeman was fuming.  Over Jennifer's objections he had insisted that he and Hardy return to the Sutter Street offices.  He need to vent and didn't want to do it in front of his client.  "He never, never mentioned Matt going to show anything to anybody!"

Hardy was drinking cranberry soda out of a bottle, picking pretzels out of the bag on the center of the conference table.  "Well, he did today, David.  Did you ask him?"

"Shit."

"Does that mean you didn't?"

Nothing, it seemed, dimmed Freeman's appetite.  He was having liverwurst and onions on a rye roll, drinking one of the popular non-alcoholic beers that were so politically correct in San Francisco but which Hardy thought were a blight on the earth.  "I asked him ten times if he'd seen Jennifer.  Was Jennifer there?  You're sure you didn't see her?"

"You think she was there?"

Freeman swallowed what he was chewing.  "The
jury
thinks she was there, Diz.  We've got to convince them she wasn't 'cause if she was, guess what?"

Hardy knew too well the answer to that one.  He sat a moment, part of him savoring the experience of Freeman choking on his arrogance, a victim of his own oversight.

*     *     *     *     *

After lunch they breezed through the coroner, Dr. Strout again, and this time he delivered his testimony without incident.  It was no surprise that both Larry and Matt had been shot at close range with Larry's gun and had died almost instantly from the wounds.  Freeman could have stipulated to most of what Strout had to say, but he held onto a small hope that once again the doctor would put some spin on his testimony that might cast doubt on the essential and undisputed facts.  He did not.

There was no point in boring the jury.  Freeman had been willing to stipulate to the validity of the forensics report identifying Larry's gun as the murder weapon.  But on the matter of fingerprints, he had a few thoughts.

The witness was the police department's expert.  Aja Farek, an attractive Pakistani woman of perhaps thirty-five.  Powell had elicited from her the testimony that Jennifer's fingerprints had been on both the brass bullet casings and clip that held them.

Freeman shuffled to center stage.  "Ms. Farek, did you find any fingerprints at all on the outside of the gun? — the barrel, the grip, anyplace like that?"

"No.  Except the person's who found the gun, of course."

"The person who found the gun?  Who was that?"

Ms. Farek consulted some notes.  "His name is Sid Parmentier.  He's the man who found the gun in the dumpster, I believe."

"The dumpster?  What dumpster?"  Freeman knew all about the dumpster.  Still, he raised his eyebrows, including the jury in his shock at this surprising new development.

Powell stood up.  "Your Honor, the People will be calling Mr. Parmentier about his discovery of the murder weapon.  Ms. Farek is a fingerprint expert."

Villars nodded, her face a blank.  "Stick to the point, Mr. Freeman."

"All right.  Fingerprints."  Freeman again included the jury, this time in his disappointment.  He guessed that they, too, would have to wait to find out what they all wanted to know about the dumpster.  Well, it wasn't his fault.  He was trying to help them but the judge and prosecutor weren't cooperating.  Back at the witness, he was gentleness itself.  "How long do fingerprints last, Ms. Farek?"

The witness frowned.  "They can last a long time."

"A long time?  A month?  A year?"

"Yes.  Easily."

"And how old were the fingerprints of Jennifer Witt that you found on the casings and the clip?"

"I don't know.  There's no way to tell that."

"You can't test them for residual dryness, anything like that?"

"No.  Fingerprints are oil-based.  They don't get dry in that sense."

"So she could have handled those bullets and the clip at almost any time?"

"Yes."

"Not necessarily on the day of the shooting or anywhere near it?"

Powell raised himself from his chair again.  "She's already answered that, Your Honor."

Freeman piped right up.  "So she has."  Beaming all around, as if he'd made a point he'd been laboring over for weeks.  "No further questions."

*     *     *     *     *

Despite the lead-in, Sid Parmentier, the man who had found the gun, had nothing either new or startling to say about the gun or the dumpster.  Nevertheless, it was not in Freeman's nature to pass on even neutral testimony.  He must have felt he had already used up his quota for the day by not cross-examining Strout, because he jumped up ready to go when Powell had finished.

Mr. Parmentier was heavy-set, with a Neanderthal-like hairline.  His black sports coat was shiny.  His over-starched white shirt was too tight, and, evidently, so was the black tie he constantly tugged at.

Freeman, loving a man who shared his sartorial tastes, stood close to the witness box, hands in pockets, relaxed.  "At any time, sir, did you see the defendant, Jennifer Witt" — he pointed for effect — "at or near this dumpster?"

"No."

"Did you see her throw anything into it?"

Powell raised a hand.  "Asked and answered, Your Honor."

Villars sustained him, but Freeman hadn't had his say yet, or he had another card to play.  Hardy suspected the latter.  "Your Honor, it bears repeating."

"I'm sure the jury heard it the first time, Mr. Freeman.  If Mr. Parmentier didn't see Mrs. Witt at or near this dumpster,  then it follows, doesn't it, that he didn't see her throw anything into it?"

Silently, apparently deep in thought, Freeman nodded.  He half-turned around to the defense table, thought some more, then gave the jury a look.

Villars wasn't having it.  "Mr. Freeman, do you want to excuse the witness?  Let's stop these histrionics."

Contrite, sincere, Freeman apologized — lost in thought, as though he'd forgotten where he was for the moment.  "It just occurred to me, Your Honor, that this testimony here falls into the same category as that you ruled on during the earlier part of this trial."

No one in the courtroom — not Hardy, not Powell, not the jury or Villars — knew where he was going, and he took the opportunity he had created to push forward uninterrupted.  "We've got a gun in a dumpster, just like we had a hypodermic needle in a leg years earlier."  Freeman turned directly to the jury, suddenly raising his voice, suddenly furious.  "You see what he's doing, don't you?  Mr. Powell keeps leaving out any
agent
who delivers these
objects
  to their destinations.  He wants you to assume that it's Jennifer Witt and he
can't do that
."

Bam bam bam.

Villars sounded angry:  "Mr. Freeman, get hold of yourself.  You don't address the jury like that.  The reporter will strike those last remarks."

But Freeman kept his voice up, indignant, outraged.  "Your Honor, my client's life is at stake here, and there's no evidence whatsoever that Jennifer Witt even
held
this gun that somehow got into the dumpster."

"Your Honor!"  Powell had come around his table into the forum of the courtroom.  "Her
fingerprints
were on the weapon."

Villars used her gavel again.  "Sit down, Mr. Powell, we're not arguing this right now."  She pointed a finger.  "You, Mr. Freeman, are out of order.  Are you finished with this witness or not?"

"I am outraged—"

Now Villars slammed the gavel, the sound echoing in the wide, high room.  Next to Hardy, Jennifer jumped.

"Anything but a yes or no and you'll go to jail, Mr. Freeman."

Suddenly Freeman got himself back under control.  He nodded, swallowed hard.  "Yes, Your Honor."

"Yes, what?"

"Yes, I'm through with this witness."

The judge was still holding her gavel, ready to crack it down again.  But the moment had passed, Powell was back in his seat, Freeman was returning to his.

Villars perused the room from her bench.  With no one else to talk to, she looked down on Mr. Parmentier.  "The witness may be excused," she said.  "We're going to take a short recess."

*     *     *     *     *

"They're hating you," Jennifer said.

Freeman was walking around by the window, looking out, then back, pleased with himself.  He, Hardy and Jennifer had retired for the recess to their semi-private conference room behind the bailiff's area.

"I don't think the jury is hating him," Hardy said.

"They love me," Freeman declared.

"But Mr. Powell was right."  Jennifer was sitting on the desk, hands and feet crossed.  "There was something connecting me and that gun — it was mine and Larry's — even if I didn’t put it in that dumpster.  It wasn't the same as the needle."

"It doesn't matter," Freeman said.  "After what the judge did with Ned, every person on that jury is going to have it in their minds.  They're going to think it's another Powell railroad because that's what they're going to be looking for.  I think we just put 'em away—"

Hardy was standing by the door, hands in his pockets, taking it in.  "It's a different set of facts, David.  I think the jury's going to go with the facts."

Freeman stalked back to the window, looking out and down.  "Bunch of spoilsports."

There was a knock and the door opened.  One of the courtroom bailiffs stuck his head in, gave Hardy a look and told Freeman that the judge would like a word with him in her chambers.

35

Hardy decided that he should probably swing by Olympia Way and spend an early morning hour going over notes and hoping his phantom jogger would reappear.  If she ran by that way even semiregularly there was some chance that she might be useful.  The defense would open its case in the next week and he wanted as many "other dudes" as he could for David to pull out of his hat.

Not that, strictly speaking, Hardy's jogger was another dude.  Or even a dudette.  He had different plans for her — Freeman wouldn't attempt to implicate her in the killings as a possible suspect.  But he might be able to use her to discredit the damaging testimony of Anthony Alvarez, the neighbor from across the street.  What if he had seen this phantom jogger that morning — and not Jennifer — at the gate?  And therefore not in the house.  If a question about Alvarez's identification of Jennifer could get planted in the jury's mind, the jogger would be worth putting on the stand.

Sipping some coffee out of a traveling mug, cramped behind the wheel of his Honda just after sunrise, he realized that during the past week, while the focus of the trial had been on the Ned Hollis murder, he should have been preparing overviews on Tom DiStephano and the Romans if Freeman was going to use them as defense witnesses.

But in fact he hadn't spoken to Tom DiStephano since he'd gotten threatened by him and his father a couple of months ago, and Glitsky hadn't seemed particularly inclined to move on finding an alibi for the Romans on December 28.  Glitsky might be his friend, but he was first a cop, and a busy cop with other priorities.  When the directed verdict of acquittal came in so early on Ned, he realized that time was getting short and he had to have significantly more if Freeman was going to be able to use any of the information he'd gathered on these people.

He'd have to put the needle in Abe — see if he could get him to move on the Romans, and he knew the answer might well be that he couldn’t.  He also came across the name Jody Bachman and realized that the Los Angeles attorney had never gotten back to him on Crane & Crane and YBMG.  These were all areas that would have to be shored up before the defense began its case in earnest.

Yesterday, Monday, they had never gone back in to trial.  Villars had evidently gotten herself good and fed up with David Freeman's grandstanding and after repeated warnings on the record had fined him five hundred dollars — privately — for contempt of court.  He knew the rules as well as anyone and if he wasn't going to play by them, it was going to get expensive for him in a hurry.

By then it had been late in the afternoon and Villars had sent word out via the bailiff to excuse the jury for the day.  On his way to do that he had stopped by the room where Hardy and Jennifer had been talking , told them what had happened, and Hardy had taken the cue and cut out.

He was parked at the corner so that he could see where the jogger had appeared out of the woods the last time.  Looking down, going over one of Florence Barbieto's interviews with Walter Terrell, he almost missed her when she emerged again.

Throwing his notes onto the passenger seat, he started the engine in time.  Sure enough, she ran down the same route, turning the corner onto Jennifer's street, just flying.  Hardy pulled across the street, into the driveway just as she arrived at, cutting her off.

He opened the door and got out, facing her across the roof, smiling.  "Hi again."

Today she was wearing maroon shorts and a Boston Marathon T-shirt, a maroon headband, and the can of Mace.  Panting, seeing Hardy, she closed her eyes briefly, then opened them.  "What's your problem?" she asked, sucking air.  "Why don't you leave me alone?"

He really wasn't into ruining this woman's day but he also didn't want to let her get away again.  He had a card out, ready, and held it up over the hood of the car.  "Just grab this as you run by — would you? — and call me.  It might be important.  It might even save a woman's life."

She stood there a minute, staring, as though she hadn't heard him.  "You're a lawyer?  Really?"

"That's right."

"Last time you didn't look much like a lawyer."

He grinned.  Clothes make the man.  Now he was in one of his suits, on his way to court, a real-life lawyer.  "I was in disguise."

She was still breathing hard but more controlled than when she first stopped.  Hardy figured that even if he could run as fast as she was going, which he couldn't, if he had come from the Sutro Woods down to here it would take him ten minutes to get his breath back.  She was already back to being able to talk without gasping.  It was impressive.

She reached over and took the card, glanced at it, then at her watch.

"I don't want to keep you, but if you've got time for one question, we might clear up something right now."

She looked again at her watch, took a deep breath.  "What is it?"

"Do you run down this street often?"

"Almost every day.  I've got a regular route when I'm working out."

"Not the same time, though?"

She shook her head.  "Depends when I wake up, how the morning's going.  Why?  You been waiting around here?"

"A couple of days, early.  So sometimes it's later?"

"Sometimes."  She was getting leary again.  "This is more than one question."

"Yes.  It is.  Sorry.  How about this one:  Do you ever remember running by this house here" — Hardy pointed — "and hearing something like shots, something that might have made you stop for a minute?  That's the special one question."

She gave it her attention, breathing normally now.  She ran the wristband over her forehead, frowning in concentration.  "When would this have been?"

"Last winter, right after Christmas."

She gave it another second, then slowly nodded.  "Yes… I do remember that.  It was like bang, then bang, right together.  They were shots?  I think I convinced myself that they were just backfires."

"But you did stop?"

"Just for a minute.  I'm on a schedule.  I like to keep running.  I didn't see anything else, or hear anything.  I decided it must have been a backfire so I just kept on."

Hardy stayed where he was, just outside his door on the driver's side.  He wasn't about to spook her now.  "You mind telling me your name?"

There was a last bit of hesitancy but it gave way.  She even half-smiled at him.  "Lisa Jennings. This is for real, isn't it?"

"As real as it gets, Ms. Jennings."

*     *     *     *     *

Hardy came up the gallery aisle — out of the corner of his eye he saw Terrell in the front row on one side and Lightner on the other — and let himself through the swinging gate at the rail.  It was almost eleven and Dean Powell had a diminutive Filipino woman on the stand — Florence Barbieto, Jennifer's next-door neighbor.

Hardy sat down next to Jennifer, touched her arm and whispered, "Jackpot.   The woman who started running away in front of your house… I found her."

"Where?"

Hardy didn't get a chance to answer.  Villars interrupted Powell's questioning with a tap of her gavel, a glare at Hardy.  The message got across.  He sat back with a gesture of apology.  He didn’t feel like incurring a five-hundred dollar fine, and his information, though useful, could wait.

Powell turned back to his witness.  Apparently she hadn't been on the stand very long, they were going over the events of last December 28 and hadn't gotten very far.

"To repeat, Mrs. Barbieto, you heard them fighting?"

"Oh yes.  The houses aren't far apart.  They were yelling at each other and the boy was crying."

"Could you make out any words?"

Mrs. Barbieto brought her finger to her lips.  "No," she said at last, "not that morning."  Leaving the implication that on other mornings she had.  But Powell knew better than to prod there.  Freeman would be up if he did and he'd be right.  This was the morning they cared about.

"All right.  Now, could you tell us about the events leading up to the shots themselves?"

"Well, I was in my kitchen cutting up chicken for
adobo
.  The kitchen is against the wall by the Witt's house, by the window."

"You were standing by the window?"

"I was cutting at the counter.  The window is over the sink.  There's another window back a ways, which I had open a crack because of the vinegar."

"The vinegar?"

"For the
adobo
."

Powell nodded as if he knew what she was talking about.  "I see.  And so you could hear what was happening next door?"

"But not anymore.  They had stopped."

"They had stopped yelling, you mean?"

"Yes."

"And for how long was it relatively quiet over there, next door at the Witts?"

"Not too long.  A minute maybe.  I put away my coffee, I cleaned the cup and put it in the washing machine"…  Hardy had a vision of a washing machine full of porcelain chips, no wonder the damn thing wouldn't work — "then took out the chicken and I was cutting it, and suddenly I heard somebody yell out 'No,' and then this awful noise.  It had to be a shot.  Still, I was thinking about all the fighting this morning and all the weekend and then there is this noise so I go to the window."

"The one that was open a crack?"

"Yes, that one more in the back.  When I get to it I hear another shot.  It is so loud, I almost feel it hits me."

Freeman nodded some more, then turned around, his eyes taking in the defense table.  Jennifer sat forward, hands clenched on the table in front of her.  She met his gaze.

"And then what did you do?"

"Well, there's a chair there, by the window.  I sat down, trying to think.  I didn't know what to think."

"What could you see from this chair?"

"Some of the hedge, then the side of their house to the back?"

"I'm sorry.  Do you mean the side of the house or the back?"

"The side, but you know, in the back.  Except nothing happens.  I don't see anything for a minute or two, I just sit there, trying to think what to do.  Then I think maybe I'd better go out, but maybe I should call my husband, I don’t' know."  Mrs. Barbieto was reliving the moment, twisting the fabric of her dress in her hands, squirming in the witness chair.  "Then I decided I have to go see.  If something is wrong, maybe I can help.  It is so quiet now, more quiet than before even when they weren't fighting."

Powell was up close to her, soothing but persistent.  "And what did you do then?"

Mrs. Barbieto took a breath.  "I went next door and rang the bell.  Then I wait and then again I ring.  But no one is answering, and I now the noise came from inside the house, just a minute before, so somebody must have been in there.  But no one answered."

She was shaking her head, stealing glances at Jennifer, clearly afraid to look at her.  Perhaps, to the jury's eyes, afraid of her.

Powell brought her back, repeating the safest question there is in a courtroom.  "And what did you do then?"

"I waited another minute, and then nobody came, so I tried the door to unlock it but it wouldn't move, and then I became afraid and ran back to my house and call the 911."

"And what did you do then?"

"I sat down by the front window until the police car came, maybe a couple of minutes.  I was afraid to stay outside."

Powell continued to walk her through the next hour or two, after the police car had pulled up, Jennifer's return from her run, the arrival of the homicide team, Mrs. Barbieto's actions and impressions.  It was a straightforward narrative that Hardy didn't think was very damaging to Jennifer.  After all, someone had been in the house and done the killing — but none of Mrs. Barbieto's testimony necessarily convicted Jennifer.  It could still be argued that she hadn't been there.

When Powell turned the witness over to the defense, Freeman didn't get up from his chair.  Instead he looked up at the judge and then the witness.  "I need one minute, Your Honor, if it please the court."

He sat there, unmoving.  He didn't look at his notes.  His arms were crossed on the table in front of him.  After about ten seconds of silence, a ripple began in the courtroom, people moving in their seats, throats being cleared.  Freeman seemed oblivious.  Hardy looked over to him; so did Jennifer.  The seconds went by.

Powell got up after about half a minute.  "Your Honor…"

Villars agreed.  She pointed her gavel.  "Mr. Freeman, are you going to cross-examine Mrs. Barbieto or not?  If you are, please get to it."

That exchange took about ten seconds, and Freeman, at last, began grabbing up his yellow pad as a prop.  He still hadn't spoken.  Sighing, he moved forward, glancing at his watch.  "Now!" he exclaimed.  Half the jury jumped, as did the witness.

Freeman circled quickly in front of the bench, taking in the whole room.  "That was one minute."

He walked directly up to the witness box and smiled.  "Now, Mrs. Barbieto, I'm sorry for that little display and if it startled you, I apologize.  But we've got some substantial problems with time in your testimony, and I thought it would be helpful to think about what a minute is."

He was out of line.  He wasn't questioning the witness.  Villars was about to reprimand him but he went right to work.  "You've testified that the yelling stopped at the Witt house quote about a minute unquote before you heard the voice shout 'No,' and then the shot, is that correct?"

Mrs. Barbieto was looking at Freeman as if he were possessed, and she could have been at least half-right.  She nodded, yes.

The judge looked over and down at her.  "Please use words in your responses.  A nod doesn't work."

"I'm sorry," Mrs. Barbieto said.  "What was the question again?"

Freeman repeated it, and this time she said that yes, it had been about a minute.

"Just to be very clear on this, during that time you were sitting there drinking your coffee, you heard them yelling across the way at their house?"

"Yes?"

"Right up until you finished your coffee and got up?"

"Maybe not."

"Maybe not?"

"But during.  While I was there, yes."

"About a minute before?"

"Yes, about."