John Lescroart - The 13th Juror

Lightner turned back toward the grove, opened the door and stepped outside. Hardy followed, and they walked a hundred feet over the duff.

"What do you think happened that morning?"

Lightner let out a long breath. There were muffled sounds of traffic on 19^th Avenue. The doctor stared through the trees. "I think it was pretty much the way she told it, except she left out the physical part."

"The physical part?"

"Larry hitting her."

"He hit her that morning?"

Lightner turned to him. "Let's say I saw the bruises the next time I saw her, which was two days later. I think he hit Matt too. I'm not saying he did, I'm saying it could have happened-"

"Matt didn't have any bruises."

Lightner shook his head, unable to get it out. "Matt's head…" he began. And Hardy saw what he meant. If Larry had struck Matt in the head, the bullet would have destroyed any sign of it. It evoked his own delirious scenario of a few nights before.

"I don't know what happened," Lightner repeated.

"What do you think happened, Doctor? This is Jennifer's life here. I've got to make Villars see it."

Lightner was trying to walk a line, trying to stay on the angel's side of privilege. "All right, this is what I believe happened."

Lightner faced him, the last low rays of the sun striking the red in his beard. Worn down by the tension, by the moral and professional dilemma, at last he appeared to have made up his mind. "She was leaving him, taking Matt with her. That was the fight. He had beaten her, badly, on Christmas Eve. She called and told me."

"And what did you do?"

"I told her to leave, to get out. She said she was afraid Larry would kill her. She told me about the gun. It was in the headboard. He would use it. I told her to take it and get out. Obviously she didn’t."

"Then what?"

"On Monday it started again." And he began to develop a scenario with chilling plausibility. Hardy could scarcely breathe as he listened. "He hits her and she says she's really going, leaving for good. She starts yelling for Matt, who is nowhere to be found. Maybe he's hiding somewhere. In any event, suddenly Larry, who's been after her, apparently decides he has had enough. He runs upstairs. Knowing what he's doing – going for the gun – Jennifer starts running up after him to get him to stop, to plead – anything. By now she is screaming, hysterical, just like that woman from next door said.

"But Larry isn't in the bedroom. And the gun is. She grabs it, hears a noise behind her, turns. There is another gun! Coming out of the bathroom door – he's gone in there. She fires. It's Matt. She had hit Matt, who had been hiding in the bathroom all this time with his new Christmas present. A toy gun from his grandparents.

"And then suddenly Larry is out, rushing her, his hands raised to strike. She fires once, point blank…" Blinking now, as though coming back to himself from a place removed, Lightner turned to Hardy. "It was over," he said. "Later she tried to cover up. But she had no choice. Larry would have killed her…"

Hardy stood a long moment. The sound of traffic was gone. The sun was down, a chill coming up off the leaves. It was a great defense, if it were true.

"That's how I believe it may have happened. Larry went upstairs for the gun. There was no premeditation. All Jennifer wanted to do was get out, get away from him. She should have done it long ago. It was self-defense, I'm convinced…"

"Will you testify to that tomorrow? If I have an affidavit for you, will you sign it?"

"To what? There's no evidence there. Even I know that."

Hardy knew it, too. But he needed Lightner there, needed his story, a story but a highly educated one, for his own ends. "Let me worry about that. My question is, can I count on you? Will you at least tell the judge what you have just told me?"

Slowly, sighing with the weight of it, Lightner nodded at last. "All right. If she'll let me."

Rebecca had missed her daddy.

He was lying on the rug in front of the fireplace snuggling with her. She hadn't let him get up, wrestling him back down to the ground, both of them laughing and talking their own language. Rebecca had given Hardy ten minutes of unsullied joy with her repertoire of kisses – rabbit kisses, nose to nose; butterfly kisses, eyelashes against Hardy's cheek; heart kisses, which Rebecca had invented herself, where she kissed her hand, held it to her heart, then pressed it to Hardy's and held it there.

It was past the children's bedtime, dark out, lights off inside, but the family was together again. The fire crackled. Vincent fell asleep and Frannie laid him down on the couch. She came down to the floor and rested her head on Hardy's stomach. Rebecca lay heavily across his chest – her breathing became regular.

"Are you coming to bed? Isn't tomorrow it?"

"In a minute."

"Dismas." Her eyes were soft, worried. She crossed over to him and put a hand on his shoulder. "Hon, it's eleven o'clock."

Hardy sat behind the manual typewriter at the kitchen table, his forehead in his hands, sick with exhaustion, his brain a buzzsaw. He could not stop thinking. He had been writing for three hours. First, touching up Lightner's carefully worded affidavit. Then he had reviewed his motion under California Penal Code Section 190.4(e) to modify the sentence down to life without parole, which was within the judge's absolute discretion.

The second brief was trickier because he knew he could not hope to prevail unless he had legitimate grounds to demand a new trial. To this end he had two arguments: The first one was that the packaging of the Ned Hollis murder count with those of Larry and Matt had fatally prejudiced the jury as a matter of law.

True, both Freeman and Jennifer had personally waived this issue on the record, but that could be dealt with. Hardy argued that no competent lawyer could have ever declined a mistrial under those circumstances, and that Jennifer's acquiescence was the result of incompetent advice.

(He knew Freeman wouldn't bat an eye at such a tactic, and in fact would have pointed it out to him if Hardy hadn't thought of it himself. The idea was to keep your client alive, not to stroke egos.)

This was a reasonable point, although – again – Villars had already ruled on it and was unlikely to change her mind.

His second argument was his last best hope – evidence on Jennifer as a battered wife had been suppressed… and Hardy knew that here, legally, things got shaky because who, after all, suppressed the evidence but Jennifer herself? He would need to try to explain why.

He was trying to bring up an argument for life in prison rather than death, under guidelines outlined in the penal code. The argument, technically, at this point could only be used in mitigation, not in overturning the guilty verdict. It was probably inadmissible under the other section as grounds for a new trial.

If he dared hope for a new trial, then Villars would have to make the connection, and the leap. And she would have to go out on a judicial limb to do it. He had no idea if she would.

But he had no choice – his eggs had to go into this basket – he had to rely on Villars being interested in justice, in the truth, as she thought she was. She had told him she agonized over the death penalty, that the responsibility staggered her. But even so, he would be asking her to reverse herself on rulings she had already made during the trials. If she wavered at all here, Powell would scream. And Powell was going to be the state's Attorney General. He would not be a good enemy for Villars to acquire just now…

Part of Hardy knew that he was kidding himself. He knew that, in practice, reversals at this stage didn't happen. The final administrative motions might be dressed up as the defendant's last stand, but their true intent was to give the judge a chance to save herself from the stigma or reversible error. Only on paper might this last hurdle have an effect on fairer application of the death penalty – in practice, historically, it rarely made any difference.