John Lescroart - The 13th Juror

"It may have those elements. It's a question of fact and we ought to let the jury decide."

Villars shook her head. "You realize you are introducing BWS here?" Referring to the battered-woman syndrome. "Do you have any evidence that what's-his-name, the second husband…?"

"Larry?"

"… that Larry was beating her, too? Is that your argument?"

"Excuse me, Your Honor." Freeman wanted to get onto the boards. "We're not claiming BWS. She is not saying she had a reason – we're not saying she killed them because they beat her and they deserved it. We're saying she did not kill them at all."

Villars pushed herself up until she was sitting on the edge of her desk.

Hardy glanced at his partner. Freeman was leaning against one of the bookshelves, seemingly at ease arguing the position that Jennifer had not killed anybody for any reason.

Villars, her arms straight down on either side, palms flat on the desk, stared through the one window at the driving rain outside. "So I assume, Mr. Powell, that we're going to hear that Mrs. Witt had bruises, black and blue marks and so on, all over her body?"

"That's right, Your Honor."

"And the fact that Dr. Poole personally saw them takes this out of the realm of hearsay?"

Powell, seeing where she was going with this, began to squirm. The leather chair squeaked as he shifted. Still, he persisted. "The bruises themselves, Your Honor, are admissible. Dr. Poole saw them himself."

"And you would then ask the jury to somehow connect these marks on Mrs. Witt's body to her husband?"

"Your Honor, the truth is that her first husband, Ned, beat her. The implication can be drawn-"

Freeman stepped away from the bookcase. "That's not true, Dean." He turned to the judge. "Pardon me, Your Honor, but my client has consistently denied that she has been a battered wife, or that this will be any part of her defense. The jury cannot draw any implication at all from bruises that may have been caused by anything."

"Oh, get serious, David." Powell was halfway out of his chair. "You know as well as I do that-"

"Gentlemen! Let me remind you that we are on the record here, and that any remarks are to be made to the court." She wasn't waiting for a response but moved off the edge of the desk, facing both men. "Mr. Powell, from what I've seen here so far, you've got an evidence problem of substantial proportions. Are you planning to call somebody who's going to give us any testimony about the day Mr. Hollis died, where Mrs. Witt was on that day, anyone who saw her take the alleged atropine out of Dr. Poole's alleged drawer, or the alleged syringe, or who saw her dump it afterward?"

Powell was standing, hands in his pockets, trying to affect a casual posture. Hardy wasn't convinced and doubted anyone else was. "Your Honor, with the insurance, the pattern here-"

Villars held up her hand. "I asked you a simple yes or no question. Are you calling anybody to address any of the issues I just raised?"

"Your Honor, I-"

"Yes or no, damn it." She looked over to the court reporter. "Adrienne, strike that profanity." Then, back to Powell: "Yes or no, Mr. Powell."

A faraway rumble of thunder rolled through the room.

"Not to those specific issues. No, Your Honor."

"Are there any specific issues you'd like to preview for us that you can think of that would fall more or less into the category of evidence and not hearsay? Take your time."

Powell sat back down, leaning forward, his forearms on his thighs. "Lieutenant Batiste, who was the investigating officer for Ned Hollis' death, is scheduled to testify."

"Is this the same Lieutenant Batiste who did not see fit to arrest Mrs. Witt for murder nine years ago, presumably because there wasn't sufficient evidence to bring charges?"

Powell was combing his hair straight back with his hands. "We have several other witnesses, Your Honor."

"I'm sure you do, but are any of them going to say anything that might be remotely admissible? You know the law as well as I do, you tell me."

In the middle of his worst nightmare, Powell came up for the third time. "Your Honor, after much deliberation and at some expense, the District Attorney's office decided to exhume Ned Hollis and run scans for poisons. We found the atropine, which is not a recreational drug, in a lethal dose."

"Your Honor," Freeman broke in, "their own witness says Hollis experimented with drugs. He wanted to see if atropine could get him high, that's all."

Villars ignored Freeman's interruption, her eyes on the prosecutor. "As you know, Mr. Powell, the point is not whether you think it, which I believe you do, but whether you can prove it – beyond a reasonable doubt – that Ned Hollis was murdered. Now, what I see is an insurance policy that was used for its original purpose, to pay off the house. I see a recreational-drug user experimenting with a dangerous drug. And here you are waffling on your motive – if Mrs. Witt didn't kill her husband for the money, then she killed him because he was allegedly beating her. Do you have any reports from doctors documenting these beatings? Did she ever report them to the police?"

There was, finally, nothing Powell could say.

Nodding, Villars crossed her arms and walked around behind her desk and stood there a moment. Everyone waited. The rain beat against the window and the clicking of the court reporter's keys stopped. Villars leaned over her chair and picked up, then dropped, four or five stapled pages of legal brief.

She shook her head, taking in the assemblage. "I'm going to be taking a moment to consider this situation. I'd like you all to return here to chambers in fifteen minutes."

Back in her chambers, Villars told Freeman and Hardy that she was prepared to declare a mistrial on Ned Hollis if they wanted it. Of course, in that case, Jennifer could – and would – be retried for the Witt murders only.

Obviously, the jury had been prejudiced – they had heard that the DA, at least, thought that Jennifer had killed her first husband. Also obviously, the jury must have a poor impression of Powell, who was bringing charges that "no reasonable juror" could believe.

Freeman and Hardy wrestled about who got hurt more – the prosecution or the defense. In the end, though, it was Jennifer who made the decision – she did not want to sit in jail while they set a new trial date and started all over again.

They put it all on the record with Villars.

"Your Honor," Freeman said, "I believe the grounds for a mistrial wee caused by prosecutorial misconduct that has violated my client's due-process rights. I believe the case must be dismissed in its entirety and that all further prosecution is barred because Mrs. Witt has been placed once in jeopardy."

Villars hated this. "Nice try, Mr. Freeman. Are you asking for a mistrial or not? If you ask for it, the defendant can be retried. If you don't request it I am not granting it on my own motion."

Freeman, not really expecting to have it both ways, was satisfied nonetheless. But he kept a straight face. "In that case, Your Honor, although I believe the trial has been fatally tainted, we elect to proceed. I have explained the situation to Mrs. Witt, and she elects to go forward. Isn't that true, Jennifer?"

Jennifer looked up. "Yes."

They all trooped back into the courtroom, where Villars announced to the jury that she had decided to grant defense counsel's 1118 motion regarding the murder of Ned Hollis – there wasn't enough evidence as a matter of law to convict Jennifer Witt of killing her first husband. They would be moving on to the next phase of the trial on Monday, but until then, Villars added, why didn't the jury go home early and get a weekend of rest?

Hardy shucked himself out of his wet raincoat, tossed it to the other end of the seat and at the edge of the banquette at Lou's. Freeman slid in opposite him.