John Lescroart - The 13th Juror

His eyes sad, dispirited, Freeman spun his empty bottle between his hands. "You just did," he said.

"Good morning. I'm not going to take up too much of your time with my defense statement this morning. You probably feel you've been here long enough. I don't want to bore you on the one hand or insult your intelligence on the other."

"But I do think it will be useful to recap what's happened here in this trial, so far as the evidence is concerned, because evidence is what trials are really all about. Does the evidence prove beyond a reasonable doubt that Jennifer Witt killed her husband and son? Well, looking at the evidence, which we've now seen every bit of, the answer, ladies and gentlemen, is no."

"Let me repeat that: The evidence we've seen so far does not prove that Jennifer Witt killed her husband and her son, and that's what it has to do."

Freeman, voice low, in his least aggressive tone, spoke in place, gesturing occasionally with his hands, but seemingly content to let his words do their work. He stood before the jury box, directly in front of the table shared by Hardy and Jennifer. He did not so much as glance at Judge Villars, or turn to Powell and Morehouse at the prosecution table. This was his statement to the jury and he was going to play to them.

"The evidence has to prove that Jennifer Witt has done these terrible deeds. It must allow for no other reasonable explanation. It is not enough to say, 'Well, maybe she could have been there and done this.' You must be absolutely convinced. There must be no doubt."

"Your Honor." Dean Powell appeared saddened by the need to interrupt. He conveyed how much he just hated to break Mr. Freeman's rhythm, but alas, he really had no choice. He spoke with considerable control. "This is argument, not an opening statement."

Surprisingly, Villars overruled Powell. Hardy thought it was the first time in the trial that he'd seen Villars blow a call on the law, Freeman was out of bounds – this was clearly argument. Evidently it was an argument that appealed to the judge.

But Freeman had no cause to gloat. He knew it, and picked right up. "And what do we, the defense, have to prove? Do we have to prove that Jennifer Witt was not at her house? That she did not use the gun? That she did not have a lover? That, perhaps, she did not know about her husband's insurance policy and the double-indemnity claim? The answer is that we do not have to prove a thing? The burden of proof is on the prosecution and it never goes away from the prosectution. Mr. Powell here" – and Freeman turned slightly – "his job is to prove Jennifer Witt did those things, and you know what? He just has not done it."

Hardy had to admire Freeman. The man was a fighter. Freeman held up a finger. "One – no one – ever – has positively put Jennifer inside the house when the shots were fired. This is a fundamental flaw that, by itself, creates reasonable doubt."

"Two." Another finger. "And this is also crucial. The prosecution has offered no motive, no theory, no reasonable hypothesis at all for the shooting of young Matthew Witt. It is simply asking you to believe that Jennifer Witt, for some unknown reason, shot and killed her only child. There has been no effort to prove that she did, or why."

Jennifer still took any mention of Matt heavily. Her head went down for an instant and she sucked in a breath, swallowing hard. She reached for her water and drank.

"Three. The first witness to even put Mrs. Witt near the scene at the time of the shooting – that was Mrs. Barbieto, you'll remember – was not even close to being clear on the amount of time that had elapsed between hearing Jennifer next door and the shots. It might have been fifteen minutes. In fact, it quite possibly was.

"Four, Mr. Alvarez says he saw Mrs. Witt running down the street away from him within a minute of the shots. One minute. Let's recall the testimony of Mr. Alvarez on this famous one minute. He said that he walked directly from his wife's bedside to the window at the front of the hallway overlooking Olympia Way, a distance of perhaps twenty feet. And there was Jennifer Witt, already – in that short minute or less – outside the gate to her house, looking back at it."

This, Hardy thought, was clear by now. And it was a crucial point. Even if she had run, Jennifer could not have made it from her bedroom – where the killings had occurred – down the stairs, across the living room, out the door, down the walkway and out the gate, closing it and turning around in the amount of time it took Alvarez to walk twenty feet.

Freeman paused briefly to let it sink in. More quietly now, confident in his facts. "Let's go to Mr. Alvarez's identification of Jennifer Witt. Now, I'm not saying he didn't positively identify Mrs. Witt – he did that. I'll ask you, though, to consider how he could be so positive when he admits that he never saw her face. That's a hell of a trick."

Villars frowned at the mild profanity but – again surprisingly – let Freeman continue uninterrupted.

"Next, since it made such an impression on the prosecution when this came up, let's take a minute to talk about Mrs. Witt's alleged intimate relationship with her psychiatrist. Dr. Lightner, under oath, has denied it. Now you may be skeptical, but remember that Inspector Terrell's opinion that they were having an affair was stricken as speculation. Which means that, as a matter of law, this alleged relationship has not at all been proved. Has anything proved that Mrs. Witt and her psychiatrist were intimate at any time? The answer, again, is no." He paused, lowering his voice. "No. Nothing." And after the interview with Lightner, Freeman could assert this with conviction.

Freeman walked to the defense table and took a sip of water. Raising his eyes for a moment, he briefly took in the gallery, seeing if he still held them, as well. Satisfied, or nodding as if he was, he turned back to the jury box, raising a finger again.

"Nevertheless, although we do not have to prove anything, we will demonstrate to you how easily Mr. Alvarez could have been – within the meaning of reasonable doubt – how he could have been, and indeed was, mistaken in his identification of Mrs. Witt as the woman who went running off after the shots. Further, and finally, we will show you evidence – powerful, compelling, incontrovertible evidence – that Jennifer Witt could not have killed Larry and Matthew – because in fact she was not in her house when the shots were fired. She could not have been there. Just as this court found that there was insufficient evidence to prove that Jennifer Witt had killed her first husband, Ned Hollis, there is none to prove that she killed her second, or, for God's sake, her child." He pointed a finger for the last time at Jennifer. "There sits a woman who truly has been wrongly accused. A victim, not a criminal. Mrs. Witt is more than legally just not guilty – she is in truth, and in fact, an innocent woman."

In his bleaker moments, Hardy wondered if it was something in the San Francisco air. He had often heard that there was supposed to be something – some mold or spoor or other magical substance – in the local salt-tinged windy ether that was responsible for some of the wonderful gastronomic delights of the city – sourdough bread and Italian dry salami, for example. But he found himself wondering if there was a less benign side to it, some as yet undefined parasite or chemical or meteorological phenomenon that produced hope at the outset of an endeavor only to dash it before it could be realized.

Witness the 1993 Giants. Had a team ever come so far only to crash and burn just enough to fall short by one game? You could talk all you wanted about their sore pitching arms and lack of basic team character, but it was damn tempting to blame the air. Here it was October, and Hardy wasn't watching San Franciso in the playoffs. And back when the Giants had been ten games ahead at the All-Star break, he'd also entertained the belief that Jennifer would be acquitted – now he worried that that was another dashed hope, like the pennant. For in spite of David Freeman's antics and experience, in spite of his "other dudes," in spite of the victory in the Ned Hollis portion of the trial, even in spite of Freeman's really brilliant cross-examinations of the prosecution's major eyewitnesses, Florence Barbieto and Anthony Alvarez, he believed now that they were probably losing.