The 13th Juror (31 page)

"Okay, and during that minute you got up from drinking your coffee — where were you drinking it, by the way?"

"Just by the window, there, by the back."

"All right, by the back window.  You took your cup up front to the sink, is that right?"

"Yes."

"And then what?"

"And then I washed it."

"With soap?"

Powell stood up with an objection, Villars overruled him.  She might think Freeman was an ass but he was following a visible trail here, and it might even lead somewhere.

"No, I just rinse and put it in the washing machine."

Freeman smiled, but clearly
with
her, not
at
her.  "I don't mean this as a criticism, Mrs. Barbieto, but do you mean you put the cup in the automatic dishwasher?"

There,  see, he wasn't so bad.  Mrs. Barbieto smiled, embarrassed.  "Yes, I meant the dishwasher."

"All right."  Freeman went on to recap what she'd done so far, walking around pantomiming her actions in the area in front of the witness box.  "And what did you do next?"

Powell tried again, saying she'd already answered these questions.  Villars overruled him.

"You mean cutting the chicken?"

"If that's what you did next, yes."

She stalled now, her face clouded.  "The things I did in the kitchen, that's what I did."

"Did you leave the kitchen during this time?"

She was silent.

"Mrs. Barbieto, did you leave the kitchen during this time?"

The witness looked up at the judge.  "I have to go to the bathroom."

"Mr. Freeman," Villars said, "are you close to wrapping this up.  The witness has to go to the bathroom."

"No, no, no!"  Mrs. Barbieto's embarrassment was acute.  "That's what I say… said.  I've got to… I had to go to the bathroom then."

Freeman stood stock still for a bit.  "You went to the bathroom before you cut up the chicken?  Do you recall how long you were in there?"

The witness was squirming, clearly uncomfortable with such talk.  "Not long, maybe a minute, I don’t know."

In the courtroom there was a low rumble.  Freeman, his point made, ignored and tried to bring Mrs. Barbieto back to his side.  "All right, let's move along now.  You've testified that you began to cut up a chicken.  Where was the chicken before this?"

Freeman maddeningly led her through each step — the chicken had been wrapped in the refrigerator, she'd come over across the kitchen from the refrigerator to the sink, unwrapped it, threw away the wet wrapper, washed the chicken in cold water, dried it with a towel.  First she'd cut off the wings, then both leg and thigh quarters.  Next she'd separated one leg and thigh portion — and just before she was about to cut the other one she heard the yell and then the shot.

"Now, Mrs. Barbieto," Freeman concluded, still friendly and helpful, "this is why we bagan with my little demonstration of what a minute is.  It's not, as you know, just a short amount of time.  It's an exact amount of time — sixty seconds.  And you've testified that you heard Jennifer fighting with her husband a minute — sixty seconds — before you heard the first shot."

"No, it was more than that."

"It could have been a lot more, couldn't it?  Perhaps as much as, say, ten minutes?"

"I don't know.  I didn't look.  It just seemed like, you know, not too long."

But easily, Hardy thought, long enough for Jennifer to have left the house and "another dude" to come in and commit the murders.

Freeman let the jury take it in, consulting the notes he held in his hand.  Reaching his decision, he looked to the bench.  "Your Honor, it's almost twelve-thirty.  I have a lot more questions for this witness but this is a good breaking point if the People have no objection."

The People did not.

36

Time-out.

Hardy had a black, cast-iron frying pan that this parents had given him before he went away to college.  It was his only artifact from those long-ago days, a relic from his own lost youth.  It weighed about five pounds, and its cooking surface was as smooth and black as hematite.  After using it he cleaned it with salt and a wipe with a towel, although every couple of years he spent an hour rubbing it down with oil and extra-fine-grade steel wool.  So far as he knew, soap had never touched it.

Frannie was reading to Rebecca before putting her down for the night.  Hardy had discovered shallots and had cut up four of them and tossed them in the pan with butter and olive oil and some parsley.  He took a drink of his Chardonnay and dribbled a few drops of wine into the pan.  A small pot of rice was on another burner and he lifted the lid, checking it.  Timing was all.  He turned the heat off under the cast-iron pan.  The prawns would only take two minutes and he wanted to wait until Frannie was finished with the Beck.  Leaving his wine, he walked through the bedroom and into what had been his office for ten years.

Now, the walls painted light blue and surrounded with a menagerie of stenciled animals, it was a child's room.  Rebecca was wearing her new turquoise silk pajamas.  They were Daddy's favorites and so she wore them every night — soon he'd have to get her another pair.  She sat surrounded by half a dozen of her "buddies" — a teddy bear and a rabbit and a cabbage-patch doll and some others, all with names — half on Frannie's lap on the rainbow children's loveseat, draped, enthralled by Good Dog Carl.  Hardy stood in the doorway, taking it in.  He came over and sat with them, and the Beck rearranged herself so as to be lying over both of her parents.  Hardy put his arm over Frannie's shoulders and she leaned into him, smelling good.

*     *     *     *     *

He didn't particularly like it that Frannie continued talking to Jennifer, but Frannie just didn't feel right about abandoning her and she didn't want to go down to the jail, so she'd talk to her on the phone from time to time.

"She seems confident David's going to pull it out after all."

"I hope so."  Hardy picked up a prawn by the tail and took a bite.  "I'm getting good," he said. "These are good."

Frannie disagreed.  "They aren't good, they're perfect.  Anytime you feel like throwing a little something together for dinner like this, you go right ahead."  Frannie had finished breast-feeding Vincent.  She was having some of the wine now.  "You don't sound too sure."

"Well, David does put on a good show.  He was something else today.  You leave that courtroom feeling like you've got your money's worth."

"But…"

"But I don't know."

Frannie put her fork down and looked across the table at him in the candlelight.  "Are you really worried?"

"I'm really worried.  He moved some rice around.  "He had Florence Barbieto up there today for maybe six hours and proved that every time she'd said the words 'a minute — and she said them a lot — it really didn't mean a literal minute.  But if this guy Alvarez, the neighbor across the street, comes on and say he saw Jennifer leaving the house within — pardon the phrase — a minute after the shots, then she was there."

"But this other woman you found.  The jogger…"

"Well, sure.  David will trot her out — and I am glad that I found her — and she'll say she heard the shots, or noise like shots, and stopped and started running right from the gate, but all Powell will have to do is ask her how she even knows it was the same day.  She doesn't.  If Alvarez sticks to his identification, that still puts Jennifer in the house, and very probably we lose."  He pointed at her plate, his face softening.  "Eat your shrimp, woman, it'll make you strong."

Frannie dutifully took a bite but her heart wasn't in it.  "I can't believe somebody — this man, Powell — who's talked to her and seen her is so determined to put her to death.  God.  I mean, she's a nice person, maybe a little confused but…"

Hardy shook his head.  "I don't mean to argue with you, but I don't think she's such a nice person.  She's lied and she did kill at least one person" — he held up a hand — "
okay
, maybe she had reasons, but I don't want to go overboard on what a sweetheart Jennifer Witt is."

"Well, she sure didn't kill Larry and Matt."

"I don't
think
she did."

"Dismas, you
know
she didn’t."

"I don't know that.  I hope it and it's true I can't imagine that she killed Matt, but I don't know for sure.  Nothing I've found, and I've been looking, proves she didn't do any of it."

"But nothing proves she did, and that's what it comes down to , doesn't it?  That's what Powell's got to prove."

Hardy nodded.  "In theory."

"Well?"

"Well, in fact quite a bit seems to indicate that she did do it.  That's the problem.  She's got five-million dollars if she's cleared, and she's out of her abusive marriage and—"

"And Matt?"

"Sure, except that…"  Except Hardy knew that there were a host of so-called human beings on the planet who were capable of killing their offspring without remorse.  He really didn't believe Jennifer was one of them, but…

"I don't think that's her."

"I don't
either
, Fran, but it's not impossible.  That's all I'm saying."

"Well, I hate it.  And I hate to hear you even suggest it."

"I'm not all that fond of it myself."

They sat, across the table from one another, the food forgotten.  Hardy reached out a hand and Frannie took it.  "I've got a really startling idea," he said.  "How about if we don't talk about Jennifer Witt or the law at all for oh, I don’t know, let's try five minutes?  And if we make it, let's go for the whole night."

It wasn't easy, but later on it was sweetly worth it.

37

As Hardy had feared, Anthony Alvarez was trouble.

It didn't help that he looked like Ricardo Montalban, the cosmopolitan spokesman for whatever quality car it was — little clipped white mustache, ruddy yet handsome chiseled face — except that his snow-white hair didn't flow, it was marine-cut.  His business suit was neat — neither showy nor run-down.  His posture was relaxed yet commanding and his vocabulary impressive.  He had worked for the City for thirty years as a fireman before retiring seven years ago, rising to the rank of Assistant Chief.  He was at home most of the time now, tending to his wife who was bedridden with a lung condition.  In short, had he been a defense witness he would have been a godsend.  But he was the prosecution's witness — in fact, he was their star.

At Powell's careful prodding he was telling the story again from his own perspective, talking about the shots.  "It was very unusual.  It's a quiet street most of the time, and one noise like that, it was surprising but I didn't think too much of it.  But then the second one, right away like it was, I thought I ought to go and look, see if there might be some serious disturbance."

"And what did you do then?"

"Well, Mary's room… Mary is my wife… is up the stairs, the second room back.  I had been in with her, reading to her, and after the second shot I walked up the hall to the window at the head of the stairs, which looks down over the street — Olympia Way."

"And did you see anything then on the street?"

"Yes.  I saw a woman dressed in some kind of a running outfit standing by the gate to Dr. Witt's house across the street."

Powell had clearly coached Mr. Alvarez on how to answer his questions, and now he had him at the crux.  "Is that woman in this courtroom, Mr. Alvarez?"

The witness did not hesitate.  "Yes, she is, sir.  She's right there" — he pointed — "at the defense table."

Powell nodded, the nail driven.  "Let the record show that the witness has identified the defendant, Jennifer Witt."

There was the expected buzz in the courtroom, and next to Hardy, Jennifer hung her head, shaking it.  Villars tapped her gavel a couple of times, calling for order, and Hardy took the moment to whisper to Jennifer.  "Look at him.  Look right at him."

Her head came up but she apparently couldn't sustain her defiance.  Alvarez was staring directly back at her, conveying that he was committed to his accusation — it was you and there's no mistaking my certainty on it.  Jennifer slowly crumbled, crossing her arms on the table in front of her, lowering her face until it rested on them.

Powell took it all in.  There was a moment when he looked at Freeman, declaring himself the victor.  Then it was gone.  He turned back to the witness.

"What did she do then?"

*     *     *     *     *

Hardy was constantly surprised by the many guises of David Freeman.  He never rose to cross-examine the same way twice.  Sometimes, as he had demonstrated with Mrs. Barbieto, he didn’t rise at all, waiting for an invitation — more an ultimatum — from the bench.  With Anthony Alvarez, when Powell had finished with him, Freeman figuratively leapt at his throat.

"Mr. Alvarez, you have just stated that you saw Mrs. Witt, standing by the gate, looking back to the front door, within a minute or so after the shots, is that correct?"

"Yes."

"Did you see her leave the house?"

"No, she was by the gate when I saw her."

"And your inference was that she had come from the house?"

"Yes."

"That she was in the house when the shots were fired."

"Yes."

"And came out directly afterward, within a minute or so, which is when you saw her?"

"Yes, that's right.  I did infer that."

"She could, though, have been
anywhere
when the shots were fired, isn't that correct?  Up the street, down the street, halfway across the city for that matter?"

Alvarez frowned and Powell objected.

"Are you going somewhere with this, Mr. Freeman?" Villars said.

Freeman nodded.  "I am clarifying, Your Honor, that the witness could not possibly have known
where Jennifer Witt was when the shots were fired
.  He assumed that she was inside at the time.  But if it was
not
Jennifer at the gate…"

Villars nodded.  "All right.  I'll overrule the objection.  You may continue, Mr. Freeman."

It was a good exchange, Hardy thought.  Of course, it didn't preclude that Jennifer had been inside at the time of the shooting, but for the first time the jury was listening to a prosecution witness testify that he could not say for certain that she was.  And after Freeman brought up Lisa Jennings, the doubt that she had been there at all would be even greater.

The question was read back to Alvarez and he reluctantly conceded that yes, in theory, Jennifer could have been anywhere when the shots were fired.  "Except that she couldn't have gotten to her front gate in one minute from across the city," he added.

Freeman smiled warmly.  "Indeed she could not," he said.  "This is why I want you to be absolutely certain of your testimony, Mr. Alvarez, that you saw
Jennifer Witt
standing at her front gate.  You are certain of that?"

Alvarez was not flustered but he surely was getting impatient.  "Yes, I'm certain."

"But you've testified that she was looking back at the front door?"

"Yes."

"And after that she began running down the street?"

"That's right."

"And her house is where, in relation to yours?"

"It's just across the street."

"And Olympia Way is a flat street, is it?"

"No.  It's fairly steep.  Maybe a three-percent grade."

"And from the Witt home — is it exactly across Olympia Way from you, or a little uphill or downhill?"

Alvarez, with no clue what Freeman wanted, remained relaxed.  He took a beat, though, to make sure that there wasn't a trap here.  Not seeing it, he answered:  "I consider it just across the street, but you're right, it is slightly down the hill."

Freeman remained crisp.  "I didn't say anything I could be right about, Mr. Alvarez.  You're saying it."

"So you were standing in your upstairs window, looking across and down the hill at Mrs. Witt, who was standing by her gate, and then, immediately, she began running down the street — that is, away from you.  Is this your testimony?"

"Yes."  Alvarez sat back, crossing his legs.  His patrician face had gradually tightened and now he was frowning.

Freeman pounced.  "All right, then, when did you see her face?"

Alvarez leaned forward.  "When did I see her face?"

"That's right, Mr. Alvarez.  If she was facing away from you the whole time, looking at her house, and then she started running downhill,
when
did you get a chance to see her
face?
"

Alvarez went with the only story he could salvage.  "Well, I must have seen it from the side."

"You
must have?
  You
must have?
  Did you or didn't you?"

"Yes I did.  I did.  I saw her profile.  I knew it was Jennifer Witt.  It never occurred to me it wasn't."

"You mean it could have been so it must have been?"

"Your Honor!"  Powell was on his feet.  "Counsel is badgering the witness."

Freeman raised his hands theatrically.  "Your Honor, this is a crucial eyewitness for the prosecution, and the jury needs to know that his positive identification of Jennifer Witt is, in fact, highly questionable."

Villars pursed her lips, disliking Freeman's histrionics but knowing he had a point.  "Nevertheless," she said firmly, "Mr. Powell is right.  You're badgering the witness.  We'll strike the last question.  You may proceed."

Freeman walked back to the defense table, took a sip of water, then turned back to the witness.  "Mr. Alvarez, let's talk about the gun, shall we?  Did you see the gun?"

"The gun?"

"Yes.  The murder weapon which somehow made its way to a dumpster down the street by the park.  That gun.  Did you notice if the person you identified as Jennifer Witt was holding that gun as she stood by the gate?"

"There was something bulging at her side."

Freeman shook his head.  "Mr. Alvarez, please, just answer the question. 
Did you see a gun?"

Alvarez didn't like it and neither did Powell, but there was nothing he could do about it.  "No, but she was holding—"

Freeman held up a palm.  "Please, Mr. Alvarez, that's all.  Let's move along, shall we?"  Freeman turned again to glance at Jennifer and Hardy.  This, of course, conveyed his expression to the jury as well — they would know that at least from his perspective he was eating Alvarez's lunch.  He turned back to the witness box.  "The final point I'd like to ask about is along the same line I pursued with Mrs. Barbieto — how long is a minute?"

Villars pursed her lips, ready to squelch any histrionics before they got out of hand, but for all his penchant for showboating, Freeman was playing this cross-examination very straight, and Hardy doubted that he'd let his flamboyance sideswipe him when he was on such a roll.

"You've told us that you were at your wife's bedside, reading to her, when you heard the shots?"

"That's right."

"And then, after the second shot, you got up to look across the street, is that right?"

Alvarez nodded wearily and Villars instructed him to answer questions with words.  Nodding again, he said, "Yes, I got up after the second shot."

"Immediately?  Within a minute, say?  Or less?"

"Perhaps slightly less.  Somewhere between immediately and a minute."

"And then you walked to your front window?"

"That's correct."

"And how far is that from your wife's bedroom?"

"I don't know exactly, maybe twenty feet, I'd guess.  Something like that."

"And you walked directly to the window?  You didn't stop, for example, to go to the bathroom on the way?"

There was a nervous titter in the courtroom — Freeman was pushing the limits of Villars' endurance and knew it, but it played beautifully for the jury.

Alvarez didn't see the humor and answered soberly, "Yes, I walked directly to the window."

"And the person you saw at the gate was already there when you arrived, looking back at the house?"

"Yes."

The picture was clear to Hardy, but he wondered how many of the jury saw it.  All of them would, he believed, after Freeman got through with his opening statement for the defense:  Could Jennifer have killed Larry and Matt upstairs in her house, then run down the stairs, through the house, out the front door and up the walkway, and then shut the gate in the time it took Anthony Alvarez to walk twenty feet, give or take less than a minute?  He doubted it, he thought the jury would doubt it, too, especially once Freeman tied in his jogger, Lisa Jennings, for the misidentification by Alvarez, mistaking Lisa for Jennifer.

*     *     *     *     *

But Powell was not about to let Alvarez stand down on this, for him, low note.  Trial rules permitted direct examination by the side giving its case-in-chief, then cross-examination by the opposition, then another round of questions should they be required by the side that had called the witness in the first place.  This last round was the redirect, and Powell was up and rolling before Freeman got back at the defense table.

"Mr. Alvarez, just a couple more questions — how long have you known Mrs. Witt?"

"We've been acquainted for about four years.  We went over and introduced ourselves when they moved in."

"Four years.  And during that time, I take it you've seen her walking away from you?"

"Yes."

"And, obviously, in profile, haven't you?"

Alvarez finally started to loosen up with the friendly tone.  He broke a smile.  "Of course.  Many times."

"And you have no doubt, personally, that the woman you saw at the gate across the street after the shots was Jennifer Witt."

To his credit, realizing what it meant, Alvarez took some time, staring at Jennifer.  "I have nothing against the woman, but it was her."

"Your Honor!"

"All right, Mr. Freeman.  The jury will disregard that last answer.  Mr. Alvarez, please just answer the question."

The court recorder, Adrienne, read back Powell's question, and this time Alvarez answered simply:  "No.  No doubt at all."

To which Freeman could not object.

*     *     *     *     *

Officer Gary Gage took the stand in his uniform.  He was about forty, a veteran patrolman, the officer who had responded to 911 and who had discovered the bodies.

"And the front door was locked when you arrived?" Powell said.

"Yes.  The neighbor" — he consulted his notes — "Mrs. Barbieto, came out when I got there.  We talked for a few minutes and then I went over and knocked on the door, and then I tried to open it, but it was locked."

"And what time was this?"

Gage reluctantly replied.  "I got there at 10:10, so this must have been maybe 10:15."

Powell frowned.  "But you received a dispatch from 911 much earlier than that, didn't you?"

Officer Gage nodded.  "Yes, sir.  We received a DD call — that's Domestic Disturbance — at 9:40."

"Exactly 9:40?"

Gage again looked down at his notes.  "That's what I've got here, sir, 9:40.  They radioed it through to me."  Gage shrugged.  "It was after Christmas.  A lot of people were having family fights.  Sometimes it takes a while."

Powell nodded, walked back to his table and took a yellow sheet from his assistant, read it, put it back down.  "What did you do then?"

"Well, I was going to go check around the back, but just then Mrs. Witt came back from running.  She asked what I was doing there, and I explained about Mrs. Barbieto's call, hearing some yelling between her and her husband, maybe some shots."

"How did she respond to that?"

Gage fidgeted slightly, raising his eyes to take in Jennifer.  He wanted to get it out straight:  "She, uh, she told me there wasn't a problem anymore.  She had just been out running.  Obviously, if there had been a fight, it was over."