John Lescroart: The 13th Juror

After he had gone over his motions, he spent the rest of the night triple-checking the evidence folders and reviewing the interviews from the beginning. His notes on Tom DiStephano. What the physicians had told him about Jennifer's "accidents", her bruises. Freeman's affidavit about Jennifer's forbidding the battered-wife defense. The abortions. The dentist Harlan Poole's first testimony.

And thank God he had spoken up back then, insisted it go on the record.

He thought that Villars would give him an opportunity – he would probably be allowed to start. But his leeway would be severely constrained – if it wasn't on the record she wasn't going to let him bring anything up for the first time tomorrow, that was for sure.

Frannie kissed the top of his head and went to the bedroom. He noticed the light going off. She had wisely given up on him for tonight.

He stood up and grabbed the telephone, pulling it around the corner into the work area off the kitchen. He closed the connecting door behind him.

A phone rang five times before a weary voice answered.

"Nancy, I'm sorry to wake you up, but there's one last thing I need to know."

He was at the Hall of Justice by seven-thirty. Even at that time reporters were beginning to swarm. This was judgment day, and it attracted them like clover drew bees. There were three minicams parked outside on Bryant and a couple of knots of news professionals sipped coffee from Styrofoam and ate Danish.

As Hardy approached the Hall, one of the stringers recognized him and trotted over, asking for a statement. Hardy stopped, his insides churning. He wanted to avoid all of this. It might jinx him. "What do you want to say? It hasn't happened yet. The verdict isn't verified." Chew on that, he thought.

Others followed:

"Do you have any new evidence?"

"What do you think of Dean Powell as Attorney General?"

Hardy had to laugh. "Let's say I'd rather have him in Sacramento than in my courtroom."

"Do you think Jennifer Witt will be executed?"

This sobered them all. This was reality. Hardy didn't want to prejudice things at this point. Villars had warned them all about talking to the media, and it would be unconscionable if he made a convincing case this morning in court only to have Villars see him posturing on television, like Powell or Freeman, while she was considering her decision.

He started moving again. He was sorry, he couldn't comment. Through the press he spotted David Freeman as his colleague turned from 7^th onto Bryant. It should have been a surprising relief – an ally to talk to – but he had lost his stomach for Freeman, too. Still, it was good of the old man to come down, put on a show of solidarity, talk to the media if he got the chance, and Hardy would see to it that he did. "Here comes David Freeman," he said, pointing.

The swarm moved to the next field of clover and Hardy escaped up the wide and grimy steps into the lobby, past the metal detector, to an empty elevator, down to the evidence lockers, finally taking refuge in a deserted jury-selection room on the third floor.

It was power-suit day. Both attorneys were dressed identically – dark charcoal suits, white shirts, red ties. Hardy's tie featured a nearly invisible pattern of tiny blue diamonds. Wild flamboyance.

They had gathered in the courtroom. Coming up the aisle, Hardy exchanged greetings with Freeman and Lightner, who were sitting next to one another. He handed Lightner the affidavit he had prepared for him and waited, making small talk with Freeman, until the psychiatrist had read it, scratched corrections in a few places and signed it.

Hardy nodded at Powell, who was leaning over his table, alone this morning. His assistant, Morehouse, didn't need to be here, he must have figured. This wasn't going to take long.

Now Jennifer came through the doors. She had dressed simply – dark flat shoes and a blue skirt, a white blouse with a small collar. No makeup. No jewelry. As the bailiff left her, she turned around and looked at the gallery, raising a hand. Hardy saw Lightner nod. Jennifer's face brightened slightly. "My mom's here," she said. "And Tom."

It was true. Nancy had just come in. Her son held her arm. Last night she had told him they had the funeral for Phil over the weekend. She hadn't been able to get back in to visit Jennifer, but Tom and she had reconnected. He was her good boy again. She was getting her children back. What a place to do it, Hardy thought.

The bailiff announced that the Superior Court of the State of California, City and County of San Francisco, was now in session, Judge Joan Villars presiding.

The judge sat at the bench, her familiar gray helmet of hair perfectly in place over the perennially stern visage. She wore her reading glasses. The court reporter, Adrienne, had her machine set up and was waiting.

"All right," the judge began, adjusting her robes. "Good morning. Mr. Powell, do you have a statement?"

"No, Your Honor. The jury has spoken loud and clear on this. Submitted by the prosecution." He looked at his watch. He obviously did not expect this to take long. He sat back in his chair.

"Mr. Hardy?"

Hardy stood and handed his papers to the judge. "Your Honor, I have two motions. Under Sections 1179-1181 of the Penal Code of the State of California I am presenting to the court a motion to grant a new trial. Concurrently, under Section 190.4(e) I have prepared a motion for the court to mitigate Mrs. Witt's sentence to life in prison without the possibility of parole."

Villars nodded. This was expected. "Have you new evidence to present at this time in support of these motions?"

"Yes, Your Honor, I do."

Powell straightened up and looked across at him.

He continued. "I have two affidavits, Your Honor. If I may." He approached the bench again and handed them to the judge, who took a long moment looking them over. Pulling her glasses forward and peering over them, she looked down at Hardy. Then: "Mr. Powell." Her little finger ordered him to approach. When he got next to Hardy she stood. "Chambers," she said. Then, to the room at large: "Court will recess for ten minutes."

Villars had moved ahead of them and seated herself behind her desk. Hardy and Powell had gone for their chairs and pulled them forward. She sat glaring into space while Powell read the affidavits. Finishing, he placed them on the desk in front of her. "I'm not going to accept either of your arguments on your motion for a new trial, Mr. Hardy," Villars said. "I've ruled on these issues repeatedly during this trial, and I'm certain the appeals court is going to uphold me."

Slowly, Hardy let out a breath, preparing himself for the worst. Next to him, he could sense Powell's excitement, his elation. Villars held the papers open before her, her eyes scanning them again, frowning, perhaps, Hardy hoped, searching for something else she had overlooked. Finally, she asked, "Lightner is the psychiatrist she was sleeping with?"

Was this an opening? Hardy jumped in. "That was never established, Your Honor."

Powell came up halfway out of his chair. "What do you mean it was never established? Your Honor, these affidavits should have been presented days ago so we could look into these matters…"

"Mr. Powell, please. I'm asking the questions here. Mr. Hardy?"

"The affidavit speaks for itself, Your Honor. Dr. Lightner says he has previously undisclosed information regarding Jennifer's situation on the morning of the murders. Her husband was beating her. If she killed him, it was to save her own life, right then, that morning. There was no premeditation-"

"Your Honor, please!" Powell wasn't having this, not at the eleventh hour.