John Lescroart - The 13th Juror

It really had nothing to do with Ms. Reed's direct testimony, but Freeman thought he saw a way to get in what he wanted, and he wasn't going to let a little thing like that bother him. His face assumed its most perplexed expression. "Ms. Reed, let's look at this map for a moment. You may have heard Officer Gage the other day testify that you branch is 1.7 miles form Mrs. Witt's home."

"Yes."

Freeman kept frowning, trying to figure this out. "He said 1.7 miles. Does that seem right to you?"

"Your Honor…" Powell rose. "We'll stipulate that the red line represents 1.7 miles."

"Stick to it, Mr. Freeman," Villars said somewhat ambiguously. "What's your point?"

Now, the door was open, Freeman smiled. "I'm glad to explain, Your Honor." He turned back to Ms. Reed. "You've said that Mrs. Witt accessed her account at precisely 9:43?"

"That's right."

"Well, we've heard a witness – Mrs. Barbieto – say that Mrs. Witt was home, that she heard her, a couple of minutes before she called the police at 9:40. I'm just wondering if you are sure about your time."

"It was 9:43," Ms. Reed said. She was well-dressed, self-assured, confident. A good, believable witness with a document – the computer printout showing the exact time that Jennifer had accessed her account – to back her up. It was 9:43.

"In other words, Ms. Reed, just to touch all the bases, and, Your Honor" – Freeman smiled up at the bench – "this is the point I've been laboring to make. We've got a picture of Jennifer Witt at her house at 9:38, which is, in Mrs. Barbieto's words, a couple of minutes before she called 911 at 9:40, and we are expected to believe that five minutes later, she was at her ATM machine, having covered a distance of 1.7 miles?"

This played very well. The jurors were struck by it as Hardy had hoped they would be. Behind him, he heard a satisfying, low buzz in the courtroom. Even Villars, doing the math in her head, seemed to be impressed. All might not be lost, after all.

The prosecution could not have it both ways – either Jennifer left before the shots, in which case she obviously could not have done the killings, or she had left later, in which case she couldn't have made it to the bank. But she had made it to the bank. So she hadn't killed anybody.

"In fact," Freeman continued, "even if it had taken Mrs. Barbieto ten minutes to call 911 after the shots, that moves Jennifer's time back to 9:30. But he shots weren't at 9:30, either, because the Federal Express driver, Fred Rivera, was there at 9:31, at least."

Freeman was rolling, in his enthusiasm making a closing argument, and for some reason Dean Powell was letting him do it. Hardy looked over at the DA's table and his stomach tightened. The man was smiling.

The judge wasn't stopping Freeman either. He just rolled on and on, paying no attention now to the witness, speaking directly to the jury. "Let's even, for the sake of argument, say that Jennifer was home, upstairs, when Fred Rivera was there. Let's say Larry and Matt were shot within a minute of that, at 9:32. If she left immediately, or within a minute as Anthony Alvarez has said she did, then Jennifer would have had to cover 1.7 miles in ten minutes. This is a pace of better than a six-minute mile, which is almost a dead sprint for a real athlete. Jennifer Witt just could not have done it."

Villars, caught for a moment in the rhetoric, came back to herself. She sent a hard look at Powell, no doubt, Hardy thought, wondering why Powell was letting the defense get away with that without objecting. But he prosecutor didn't react to her gaze. Freeman was walking to his seat, and Powell was actually rising, straightening his jacket, combing his hair with his fingers, a man on his way to a party.

"Ms. Reed," Powell began. "Do you know if the clock on your ATM, your automatic teller, is accurate?"

Hardy leaned across Jennifer. "He knows," he whispered to Freeman. "How could he know?"

Freeman shook his head, tightening his mouth. Jennifer said "what?" and he patted her hand.

Ms. Reed gave it a valiant try. "I'm not sure I understand the question. Accurate? You mean does it keep accurate time? It'd say yes."

"That's not exactly what I meant." Powell smiled at her, then turned to the jury. "We've just heard so much about time in this trial – the Federal Express computer, the 911 dispatcher, your own ATM machine – that I wonder if you know these are all connected by some big computer, or someshuch."

Ms. Reed, no fool, knew where this was going, but there wasn't anything she could do about it. If she was going to get in trouble, then she was. She definitely wasn't going to lie under oath.

It came out.

Powell, of course, feigned shock. "Do you mean to tell me that the defense knew about this three-minute gap and we listened to all this hoopla from Mr. Freeman and he never saw fit to mention it?"

Villars, Hardy thought, was almost smiling, and that was chilling. In her eyes, it seemed, Powell had just vindicated himself.

"Yes."

"Why didn't you bring it up? Didn't it seem important?"

"Well, it did, but Mr. Freeman had said I might get in trouble."

"Mr. Freeman said you might get in trouble?"

"Yes."

"How could you get in trouble?"

"I don't know. With the police maybe. That's what Mr. Freeman said, anyway."

Hardy covered his eyes with his hands for a minute. It occurred to him that it didn't look good to do that, but in lieu of a hole to crawl in, it seemed a reasonable second choice.

Powell pushed on. "So with the three-minute difference, we've got a thirteen-minute run, don't we? Or a pace that makes a seven-and-a-half-minute mile, which is fast but nowhere near requiring a trained athlete."

"I don't know…" Ms. Reed was near tears, either from fear or from anger at being placed in this position.

"Objection." But Villars just pointed her gavel. "Don't you dare, Mr. Freeman," she said.

Powell waited, naturally pleased with the ruling, then continued: "Since the defense had brought this poster up here, let's use it for a minute, shall we? You've testified about this famous 1.7 miles, is that right?"

"Yes."

"But look here, this red line skirts the property of the UCSF Medical Center. Are you familiar with these grounds?"

"Yes, they're just up the street. I eat lunch there sometimes."

"You mean, they're not closed off to the public? Anybody can walk through them?"

"I do all the time."

"Ms. Reed, would you mind taking the red marker we've been using and draw a line through the grounds of the medical center so that the jury can see it."

Everyone in the courtroom was watching. It was almost a straight line form the Midtown Terrace Playground at the end of of Olympia down to Parnassus Street.

"And is this a level area, Ms. Reed?"

"Objection."

"I don't think so," Villars said again.

"No, sir, it's all uphill."

"Or downhill from Olympia Way?"

"Yes."

"So," Powell concluded, "if you ran through the medical center, you had only to cover a half-mile of ground as the crow flies, and all of it downhill. Even if the defendant had left her house at 9:40, she could almost have walked it…"

By Friday, Hardy was going crazy sitting in his office, or strolling down to Freeman's, or going by the jail to talk to Jennifer, or looking into store windows. Waiting for the verdict was its own special hell.

And if they lost, the case would become his and his alone. It had begun really to sink in that Freeman wouldn't even be there in the courtroom with him anymore – there was no reason for him to be. Freeman had been the guilt-phase attorney and – win or lose – his job was now over. He would write his appeal, if necessary, try for a new trial or a reversal, but as far as the courtroom was concerned, Freeman would play no more active role.