John Lescroart - The 13th Juror

She took a sip of water and cast another withering gaze at counsel – on both sides of the courtroom.

"That said, let us now put Ned Hollis behind us. He has no integral connection to the remaining charges filed against Mrs. Witt. If any of you feel that you cannot in good conscience accept this instruction, please raise your hand now and I will excuse you form the jury."

No hands went up. Hardy would have preferred to see one or two because he knew, in fact, that this was an instruction that would be difficult if not impossible to internalize. Now all twelve jurors were sitting with the personal knowledge that Jennifer's first husband had died, and afterward she had collected a lot of money. No hands meant that it was not going to be acknowledged in deliberation over the verdict – but it was going to be there, a snake in the weeds.

Villars nodded. "Now, the remaining two counts still include multiple murder and murder for profit, and those are among the special circumstances defined in California for which the State can ask the death penalty. The deaths of Larry Witt and Matthew Witt should be your only concerns during the remainder of this trial. The court appreciates your patience in sitting through this exercise and assures you that we will not have a repetition of it during the coming days or weeks."

Villars took a final drink from her glass, then abruptly turned to face the courtroom. "I trust, Mr. Powell, that you are ready with your next witness."

"I am, Your Honor."

"All right, then, let's get this show on the road."

Not only was Dean Powell unhappy and angry, the confrontation with Freeman in Villars' chambers seemed to have galvanized him. Now he didn't just want to win for another notch in his belt or a leg up on his campaign. Freeman, always angling for an edge, had raised the stakes and now – for Powell – it had become personal. He was not just going to win by getting the jury to convict Jennifer Witt. He was also going to whip David Freeman.

Hardy flipped open his binder and found the tab for the Federal Express driver. He pushed it over in front of Jennifer so that Freeman could review it, too, but Freeman either did not need it – could it be he had the whole file memorized? – or was he reluctant to show that he did.

Mr. Fred Rivera, the Lou Christie fan – Hardy had had "The Gypsy Cried" going through the brainpan for weeks, it was driving him crazy – took the stand, slightly ill-at-ease to be the first witness but clearly pleased to be part of all this excitement, plus getting paid to take a day off. He wore his Federal Express uniform and sat forward in the witness chair, wanting to take it all in.

"Mr. Rivera." Powell stood on the balls of his feet, rocking forward and back, fifteen feet or so in front of the witness, in the center of the courtroom. "On the morning of December 28 of last year, the Monday after Christmas, did you deliver a Federal Express package to 128 Olympia Way?"

"Yes, sir, I did."

So it began, Powell walking Rivera through the delivery at precisely 9:30 a.m., when Larry Witt and Matt were still alive. Fred identified a picture of Larry. It was stamped as an exhibit, as was the Federal Express invoice containing Larry's signature for the package. Nailing the time down, Powell introduced the computer printout showing that Fred had punched in his verified delivery at

9:31.

Powell started his next line of questioning: Rivera had seen no one walking up or down Olympia Way that morning. Then without changing his rhythm, the prosecutor departed from what Freeman and Hardy had predicted would be the script. "Mr. Rivera, you had a talk with Inspector Terrell about the events of that morning and you described Mr. Witt's behavior, did you not?"

"You mean I said he was pretty uptight, like that?"

Freeman raised his index finger and objected that this was speculation and called for a conclusion. Villars sustained him. Powell rephrased it. "Mr. Rivera, what did Mr. Witt do when he opened the door?"

"Well, he only opened it a third, maybe a half way. I gave him the package and then tried to give him the clipboard so he could sign for it, but he was holding the package, no place to put it down. It seemed to make him mad."

Freeman, wondering where all this was going, raised a finger again. "Your Honor? Same objection."

Villars leaned over to the witness. "Mr. Rivera," she said gently, "just say what you saw him do, not how you think he felt about it."

Rivera's composure was slipping. Throughout all of his earlier conversations with lawyers and policemen, nobody had made him respond in this way before. Welcome to jury trials, Hardy thought.

"What did Mr. Witt do then?" Powell was suddenly his good buddy, helping him, drawing him out.

"Well, he turned half-around to give the package to the boy."

"Did you see the boy?"

"No, I didn not see him, not then. He was behind the door."

"Then how do you know it was the boy?"

"I saw him go running off to show the package to his mother."

At the defense table, Freeman was flipping pages on Rivera's interviews. "You ever hear this before?" he whispered to Hardy and then, without waiting for an answer, stood. "Your Honor, I object. The witness can't possibly know the boy's intentions going off with the package."

Freeman appeared agitated and he had reason to be. If the prosecution could show that Jennifer had been home at 9:30, and until now nothing in the record had indicated that they could, it would be a significant loss.

Villars all but rolled her eyes. "I'm sure Mr. Powell will rephrase."

Powell, still not skipping a beat, smiled at Rivera and said, "Dr. Witt handed the package to the boy behind the door. Did the boy then say anything?"

"He said, 'I'm going to show this to Mom.'"

Powell turned to Freeman, stopping to make sure the jury understood what Rivera had said. "Your witness."

It was a classic example, Hardy thought, of why trials were both so addictive and so nerve-wracking. Freeman had interviewed Rivera twice and the man had never wavered in his story – he hadn't seen Jennifer. He had wanted to get back and hear the Golden Oldie, win a trip to Hawaii. He'd been at the door with Dr. Witt for a minute at the most.

So the entire thrust of Freeman's interview had been to establish the time of delivery – not whether Matt had gone running upstairs calling for his mother.

The old bear got up slowly, but by the time he had reached his spot in front of the bench there was no further sign that he had taken a blow. He smiled at the witness, nodded to the jury. "Mr. Rivera, we've had a few conversations over the past couple of months, have we not?"

"Yes, sir."

"And during those conversations, did I ever ask you if you saw Jennifer Witt while you were delivering this package on December 28?"

"Yes, sir."

"And how did you respond?"

"I said I didn't see her."

"Did you hear her? Was she, for example, singing in the shower or something like that? Moving furniture around?"

Freeman was taking advantage of the rules that allowed defense in cross-examination to lead witnesses, and Freeman was also using this bantering tone to get back into a more relaxed mode with Fred, showing him what a regular Joe he could be.

He got his small reward. Rivera grinned, loosening. "No, I didn't hear nobody singing or moving things around."

"When the boy ran off, did he yell for his mother? Did he run up the stairs yelling 'Mom!' or anything like that?"

A risky question – if the answer was yes it would hurt. But given the repressed nature of what they knew to be the tone in the Witt household, Hardy thought it would pay off.

It took a moment of reflection. Hardy glanced over at the jury. They were following every nuance. Faces were on Rivera. "No, I don't remember that."