The 13th Juror dh-4 Read online

  There was also another witness, the next-door neighbor, Mrs. Barbieto, who'd also heard the shots and had been the one who had called the police. Larry and Jennifer Witt had been fighting for weeks, she said. Their son was an unhappy little thing. He cried all the time. The night before, that morning, "You should have heard them on Christmas" (three days before) – it seemed they nearly ruined the Barbieto's family dinner.

  Hardy was taking a shotgun approach to his first reading of the file, and had turned right away to the tab marked "Civilian Witnesses." Apparently there were eyewitnesses. From a defense point of view, eyewitnesses were not particularly heartening.

  He was sitting on the side of the steps outside the Hall of Justice at 7^th and Bryant. The day was cool and sunny with a light breeze that would probably kick into a gale by five o'clock. Now, though, it was pleasant, even with the bus exhaust and the fast-food wrappers beginning to swirl on the steps.

  He turned back to the arresting officer's report. Inspector Terrell had begun to suspect Jennifer after she had provided him with an inventory of items that might have been missing from her home and had omitted the murder weapon. She had carefully searched the house and reported nothing missing. This was before their gun had been found under the dumpster.

  After that, Terrell had questioned Jennifer about this oversight and Jennifer had said she must have simply overlooked it, blocked it somehow. Hardy didn't remember this fact from any of the news reports, and it wasn't a good one to find now. He closed the file.

  "Hardy."

  He squinted up into the sun and stood up. A tall man, slightly older than Hardy himself, hovered over him in a light charcoal suit, his hand extended.

  Hardy stood and took the hand.

  "Just saw you sitting here, Diz. Rumor has it you're defending Jennifer Witt."

  "You know rumors, Dean. They never quite get it right." He explained his stand-in status, helping out his landlord, the famous defense attorney David Freeman.

  Dean Powell showed a mouthful of teeth. He had a glorious mane of white hair, ruddy skin and an impressive posture. Hardy hadn't wanted to go see Powell earlier and didn't feel particularly prepared to chat with him now. But here he was, smiling and talking.

  "Art wanted to warn me early that you had the case. So I'd take it more seriously." Some more teeth to flavor the compliment. "But it's Freeman, huh?" His face clouded briefly. Powell might be nice Hardy and stroke him about what a good job he'd do, but the mention of Freeman moved things up a big notch. Freeman didn't lose too often.

  Powell motioned downward. "That her file?"

  Hardy patted it. "It seems a little thin on motive for Matt's death – the boy's. I mentioned it to Art and he didn't seem to want to talk about it."

  Powell's grin faded. "I'll talk to you about it. The motive was the husband's money. The boy got in the way. Period."

  Hardy turned sideways out of the sun's glare. "You really believe that?"

  "Do I really believe it? Tell you what, I think it's inherently believable."

  "That's not what I asked you."

  The Assistant DA ran his hand through the flowing hair. "Do I personally think she shot her boy in cold blood? To tell you the truth, I don't know. We've charged women with that particular crime four times in the last two years, so don't tell me it's just too heinous to even imagine a woman could do that."

  Hardy persisted. "I'm saying she, Jennifer, didn't do it. I just spent some time with her upstairs."

  "She was sad, was she?" Powell shook his head. "Remember Wanda Hayes, Diz?" He was referring to a highly publicized case from several months earlier. Hardy nodded, he remembered. "Well, Wanda was a real wreck, crying all the time. And she admitted that she killed two of her kids. She said she just kind of lost her temper one day, felt real sad about it."

  "Okay, Dean, but-"

  "But nothing, Diz. I'm not saying that Jennifer's plan was to kill her son. What she did do, and what we can prove, was that she planned to kill her husband and didn't take the time or whatever else to make sure her son was out of the way. Maybe she was just careless. I don't know and I don't care. The bottom line is the son's dead and she's going down for him, too."

  The flash of anger spent, Powell suddenly exhaled, as though surprised at his show of emotion. He reined himself in. "Listen," he said, "I'm just on my way over to Lou's. You feel like a drink?"

  Lou's was Lou the Greek's, the local watering hole for the cops and the DAs.

  Hardy motioned to the file again, shaking his head. "Another time."

  The Assistant DA's face tightened. Powell was said to be considering a run for State Attorney General in this year's special election and he had obviously been working on his public moves – this invitation for a drink had the ring of sincerity, for example – but it put Hardy on guard. Powell was saying that, as Hardy knew, one of the duties of the prosecutor was to provide full and free disclosure to the defense team. "You know, you might want to drop by Art's again. We don't want you to have any surprises."

  Hardy squinted, moved to the side. This was unusual. "I just got the file an hour ago."

  "Yes, well, Art and I discussed the case after you stopped by and we decided it would be better to lay it all out at the beginning. Like I said, we don't want any surprises."

  "What surprises."

  Powell's face took on a serious expression. "You haven't seen the indictment yet. We charged Mrs. Witt with a third count of murder."

  "What third murder?"

  "Her first husband died of a suspected drug overdose nine years ago. Did you know that? I don't know how the media hasn't come up with this yet but I'm sure they will."

  Hardy stood still as a pole. He wondered whether his once-upon-a-time friend Art Drysdale had deliberately given him only half of the discovery – there wasn't really any legal advantage in doing so, but Drysdale had been know to mess with defense lawyers just to keep them off balance. It was a good reminder for Hardy – he really was on the other side.

  "In any event," Powell went on, "Inspector Terrell, the arresting officer? He's been pushing for exhumation and got it through with Strout." This, was John Strout, the coroner. "It seems Mrs. Witt made a small bundle on that death, too. Something like seventy-five thousand dollars, which back then was a reasonable piece of change. Terrell found out she was dating a dentist when Ned – that was husband number one – bought it. Dating this dentist while they were still married? Bad form. Anyway, when Ned died it looked like an overdose – so the coroner ran the A scan, found coke and alcohol and ruled it an accidental overdose."

  Hardy knew the medical examiner ran three levels of tests to scan for poisons in dead people. Level C included a lot more controlled substances – barbiturates, methamphetamines – then the check for volatiles – essentially alcohols – that turned up on a Level A scan, but it also cost a lot more to run, and when the apparent cause of death was found at the A level, unless there was an investigator's report indicating foul play, the coroner most often stopped there.

  Hardy knew all this but he had to ask: "He didn't check for anything else?"

  "Why would he? They found what they were looking for, coke and booze in an overdose situation… hell, you know. And Ned had 'em both, so the book got closed. But guess what?"

  "I can't imagine." Hardy was feeling numb.

  "Atropine."

  "What?"

  "Atropine. Jimson weed. Deadly nightshade."

  "What about it?"

  "Atropine is what killed him. We exhumed him on Terrell's hunch and there it was."

  "So he OD'd on atropine."

  Powell shook his head. "You don't just OD on atropine. Atropine doesn't make you high. It's not a recreational drug, but Ned was loaded with the stuff."

  "That's not necessarily murder-"

  "I think in connection with these latest two it is."

  "She didn't do these either."

  Powell favored Hardy with one of his world-weary looks, which said okay, that's a de
fense attorney's answer about his client, but between us two professionals we know the truth. What he said was: "Your Mrs. Witt's a black widow, Hardy. We're going for Murder One on these. A death sentence. This is a capital case."

  3

  "You can't be serious…"

  The color was gone from Jennifer's face. She simply hung her head, then after a beat shook herself, stood and walked over to the window in the visitor's room, through which she stared out into the guard's office. "Ned killed himself, maybe by mistake… But somebody else killed Larry and Matt. I swear to God… I couldn't have killed my little boy."

  Hardy noticed she didn't say the same about her husband. He sat with his shoulders hunched over, fingers locked together on the table in front of him. "Tell me about Anthony Alvarez," he said.

  She combed her bangs back with her fingers, twice, still facing the window. "I don't know any Anthony Alvarez…"

  Hardy kept his voice low. "The police report identifies him as your neighbor, lives across the street."

  Now she turned. "Mr. Alvarez? Oh, that's Anthony Alvarez? I never knew his first name. What about him?"

  "What about him is that he's a lot of the reason you're here." Hardy told her the gist of his testimony. While he talked she returned to the end of the table and sat again, kitty-corner to Hardy.

  "But I didn't do that. I always start out by walking a couple of blocks to warm up. I wouldn't have just shut the gate and started out running. Not only wouldn't have, I didn't."

  Hardy nodded. "Why do you think he says it was you? You have any words with him, anything like that?"

  "I don't believe this." Jennifer inhaled, shook herself, let it out in a sigh. "Maybe in four years I've said a hundred words to the man. I don't think I'd recognize him if he wasn't standing near his house. Why is he doing this to me?"

  "I don't know," Hardy said, "but for now I think we'd better concentrate on something that could help you. Was there anybody that might have seen you walking? Another neighbor?"

  Jennifer shut her eyes, leaning back in her chair, revealing the curve of her body, the plane of her cheek. Hardy suddenly realized how attractive she was, even in the jail garb. Pouty lips, a strong nose. Bones well-limned.

  "I passed a man," she said, eyes still closed. "An older guy, maybe black or Mexican, dark anyway."

  "I read about him." Hardy sat forward now. "I don't think he's going to fly."

  "What do you mean?" I did see somebody. I think it was, I mean it could have been the person…"

  Hardy was shaking his head. She reached a hand across the table to him. "No, no. No, listen. It was the week after Christmas, no traffic, no one around, and here's this man walking up the street, he's wearing this heavy trenchcoat, looking like he's checking house numbers. I almost stop and ask can I help him but I didn't want to be late so I keep going by." She stopped talking, staring at Hardy. "It really could have been him, the one… I mean, somebody had to do it…"

  "Did you notice if this man had a gun?"

  "No, I'd have-"

  "Do you have any idea why somebody who didn't know Larry personally would want to kill him? Or your son?"

  Her eyes stared into the space between them. "If you find a yes to any questions like these, Jennifer, then we can usefully talk about him again, but I'm afraid he isn't going to do us any good right now."

  "But it might-"

  "When it does," Hardy said, "then we'll look at it. Okay? I promise."

  Hardy reminded himself that he wasn't here to upset her. He had felt, though, he should tell her they were going capital. It was still going to be essentially Freeman's case but it wouldn't hurt to collect more impressions of Jennifer. "Let's go on to anything else about that morning, anybody else who might have seen you."

  "But that man, he might have been…"

  Hardy patted her hand, held it down on the table. "Let's move on, okay?"

  She pulled her hand away. "You've got to believe me, I didn't do this. If it was that man…"

  "If it was that man," he said. "There could have been somebody, all right, he might even have shot Larry, but he also might be anybody – a neighbor, a tourist, a guy just taking a walk."

  She glared at him. "He had his hands in his pockets, both hands. He might have been holding a gun."

  Hardy almost said, Forgetting, of course, that your husband was killed with your own gun. He slowed himself down. "Let's stop. Look, we're not here to argue. We'll come back to the man later. For now we've got to leave him, he's not going to help us unless he lives near you and we can find him. Now I'm trying to find something to hang your defense on, and he's just not it."

  Her face went all the way down to the table, within the circle of her arms. Her body was shaking as she rolled her forehead back and forth.

  "Did you do anything unusual at all on your run? Anything you might already have told the police? Or forgotten to tell them?"

  She stopped the rocking. As though struggling with its weight, she raised her head, sighing again. "They didn't ask any questions like this," she said. "I didn't think… I mean, I didn't know they thought I was a suspect. They misled me, they never asked any of this."

  Hardy said quietly, "I'm asking now, all right? Let's try to get something."

  Jennifer nodded, then recalled that she had stopped at the automatic teller at her bank on Haight Street. Which seemed odd to Hardy. "You left to go running and happened to have your ATM card with you?"

  "What's so strange about that?" And she explained that most of her running outfits had Velcro pockets and as a matter of course she grabbed her house key and her change wallet – in which she kept her ATM card – whenever she left the house. She told Hardy that on that morning she had walked down her block, passed the man in the trenchcoat, started running for a couple of blocks, then stopped for cash – "It was the Monday after Christmas, we hadn't been to the bank for three days."

  At least it was someplace to start.

  *****

  In some ways Hardy's involvement with Jennifer Witt was easier to explain to the client than it was going to be to his wife.

  After the successful conclusion of his first murder trial – defending former Superior Court Judge Andy Fowler – Hardy had been surprised to find himself something of a property in the small world that was San Francisco's legal community. Trial lawyers – men and women who were good on their feet in front of a jury – were, it seemed, in great demand. Even in the large corporate firms, the final outcome of all the work done by offices full of bean counters and number crunchers, library rats, technical brief writers and legal strategists, paralegals and lesser staff often came down on the shoulders of the person in the firm who could convincingly present it all in front of a judge or jury or both.

  Since most corporate attorneys rarely if ever saw the inside of a courtroom, many firms hired trial lawyers the way baseball teams purchased designated hitters – the role was limited, but if it came up it was far preferable to having the pitcher come to the plate with the game on the line.

  Because of the sensational nature of Judge Fowler's trial and of Hardy's own role as an unknown, underdog, first-time defense attorney, it seemed that Hardy had unwittingly been auditioning for half the firms in the Bay Area. When the verdict came down in his client's favor, his phone had started ringing.

  Another event that had coincided with the end of Fowler's trial had been the birth of Hardy's and Frannie's son, Vincent. So for the first month Hardy had begged off many of the interviews, pleading his new fatherhood, Frannie's desire to have him at home for a while.

  Now, three months later, he had visited eleven firms, riding elevators to plush offices in his only three-piece suit, going out to fine lunches with men and women with whom he felt no connection whatever – nice people, sure; smart, well-turned out, confident, financially secure, socially aware, all of the above. But no one to whom he was drawn as a human being.

  Seven of the firms had offered him positions, with salaries ranging from a low
of $83,000 to a high (Engle, Matthews amp; Jones) of $115,000. All of the offers put him well onto the partner track, crediting him with up to six years of previous service. This meant that within, at the most, another three years (and at the least, one), he would become a partner in any of the seven firms and could expect annual compensation in the realm of $300,000 to $500,000.

  Frannie had brought an insurance settlement to their marriage. Hardy, aside from the fees in the Fowler trial that had run to low six figures, owned a one-quarter interest in the Little Shamrock bar. Their house payment was under six-hundred dollars a month. So Frannie and Hardy were not hurting. Nevertheless, the kind of money the big firms were waving in his face was not pocket change, was even tempting.

  Their house in the Avenues was already, with the addition of the two children, starting to feel pinched. The could see moving up; they'd even discussed it casually after Hardy had received the first couple of invitations. It had become more or less understood that Hardy would choose one of the firms, get a linear job, be an adult.

  But he just hadn't been ready to commit to any of the firms – something better might come up, some people he felt better about being associated with. So in the interim he borrowed an empty office and paid a nominal rent in the building owned by David Freeman, which was where he had been, essentially twiddling his thumbs, when David Freeman himself had called up with the Jennifer Witt referral.

  *****

  "It's probably going to be a fair amount of money," Hardy said.

  "But it's another case. It's not a job."