going to be as strong.'
'See, Diz, I do believe you've got a knack for this business.' Freeman moved his cigar around. 'If the matter gets to a jury, your client's already in big trouble and it behooves you to take it as seriously as you can.'
'I do take it seriously, David. You asked me if I think, gut level, that she did it. At the least, I'm saying I'm not sure the case is that strong-'
'That why they're going capital? That why Powell's got it, with his political ambitions? He maybe needs the practice in court? I doubt it.'
Hardy couldn't help smiling. 'You've got to learn how to express your feelings, David. It's going to eat you up someday, holding it all in.'
Freeman nodded. 'I know. I'm trying. They'd mind if I lit up in here, wouldn't they?'
Freeman was sitting under the international no-smoking symbol.
'I'd bet on it,' Hardy said.
'I was assuming all along you'd be a part of it, to tell you the truth.'
Hardy had not decided on a precise strategy to introduce the subject of his continued involvement in Jennifer Witt's defense, but as was so often the case with David Freeman, the question got preempted.
In California, all death penalty trials had two phases before the same jury – guilt and penalty. In practice, the lawyer in the guilt phase never stays on to do the penalty phase. Juries got cynical about a person when first they argued passionately that their client didn't do it and – once it was established that yes, they did, too – then turn around and say, in effect, Okay, so my client did it. I know I said it wasn't so, but I lied. But at least now let's talk about what a nice person my client is and why execution would be really too strong…
So, to avoid this appearance of inconsistency, there was also always a penalty-phase attorney, commonly called the 'Keenan counsel,' and it was this role Freeman had now asked Hardy to take should Jennifer be found guilty and it came to that. 'Assuming, of course, that she can pay.' He seemed serious when he said it.
Jennifer Witt had the right to counsel, but if she did not have the personal funds to cover the costs – and in a capital case they would be enormous – the court would appoint a public defender. And even if the public defender claimed some kind of conflict of interest, there was no guarantee that Freeman and Hardy would be appointed.
Freeman, of course, was a long-standing court-approved defense lawyer, but Hardy had not yet even applied for the list, and in any event, with this kind of case at stake, the other vultures would be circling. This looked like it was going to become a high-profile case – the very best advertisement in the business. But if Freeman and Hardy were going to defend Jennifer, she, personally, was going to have to pay them. No getting around it.
'And I'll tell you something else,' Freeman said. 'This is Private Practice 101. I don't care if your client is Mother Theresa, you get your money up-front.' He seemed very serious. And it bothered Hardy.
The clerk entered from the front of the courtroom talking with the court reporter. They started setting up their work areas, organizing, talking in low voices. In the gallery, what looked to be some of the other attorneys had arrived – Freeman nodded to a few of them. Non-lawyers, perhaps relatives of defendants or victims, were beginning to straggle in.
This was Superior Court. People coming before the judge in this courtroom were not here for traffic tickets. Hardy left Freeman reading the file and stood, wandering up to the rail that separated the gallery from the principals.
The prosecutor Dean Powell tapped him on the shoulder. 'I kind of expected you this morning.'
'I thought I mentioned that David Freeman's got this one, Dean. There he is back there, doing calisthenics.' Freeman was pulling on an ear, studying, oblivious to the world. 'I'm mostly along for the ride.'
'Freeman decide on a defense?'
'No, but Jennifer has. It's you r favorite.'
'Not guilty? No insanity? Justifiable, even?'
'Mrs. Witt says she did not do any of it.'
Powell nodded, poker-faced. But Hardy had the sense that he was delighted. 'Yes, she did,' he said.
Judge Oscar Thomasino, short brush-cut hair and swarthy complexion, had a no-nonsense demeanor in the courtroom over which he had presided for ten years. He had come in this morning with another of the surprises that marked life behind the rail.
'Before we begin today,' he said, 'is there someone in this courtroom driving a Green Chevy Lumina license number 1NCV722?'
An Hispanic male in his mid-twenties raised his hand and stood up in the third row of the gallery. Thomasino motioned him up through the bar rail. Reluctantly, the man complied, and the judge frowned down at him. 'Did you happen to notice, sir, the large sign in the space you took outside that read Reserved for Presiding Judge?'
The young man bobbed and half-turned around, looking to the gallery for support. 'Aw, come on, I'm in trouble now because I took your parking space?'
'Not precisely,' Thomasino said, 'although that's part of it. Your big problem is that the car is stolen.' Thomasino directed the bailiff to take the man into custody. They would figure out what to do with him upstairs. The car had been towed to the City lot.
Hardy was still chuckling about it when they called Jennifer's line – her computer number. Hardy and Freeman then came through the bar rail. Dean Powell and a fresh-faced young assistant moved over from the jury box, and Jennifer Witt was brought out to the podium that faced the judge. Hardy thought that Jennifer, beaten down and deflated, looked very much like a defendant, but the jumpsuit could do that to Cindy Crawford. He introduced her to Freeman.
She took in her ragged attorney with something less than enthusiasm – a reaction he was accustomed to. She made a face at Hardy – this is my lawyer? – then faced the judge. As in all murder cases, the clerk read out the complete indictment.
'Jennifer Lee Witt, you are charged by indictment with three felony counts filed herein, to wit, violations of Section 187 of the Penal Code in that you did, in the City and County of San Francisco, State of California, on or about the 31^st day of August, 1993, willfully, unlawfully, and with malice aforethought murder Edward Teller Hollis.' The clerk read the special circumstances, going on to add the charges regarding Larry and Matt Witt. When he had finished, Thomasino nodded toward the podium and said he assumed by the presence of Messrs. Freeman and Hardy that Jennifer was represented by counsel. He asked Jennifer how she was going to plead.
'Not guilty, Your Honor.'
Making a note on his printout, Thomasino looked over his reading glasses, which were slightly tinted and half-moon shaped. 'Mr. Powell. The people seek to deny bail?'
Powell stood up. 'We do, Your Honor. This is a special circumstances case. The allegations are multiple murders and murder for profit. The defendant has already killed-'
'Your Honor!' Freeman was not having any of this. To date, it was not established that Jennifer had killed anybody. That was, after all, what this was about.
The judge scowled down at the prosecutor. 'Mr. Powell, please.'
Powell put on a show of contrition, but wasted no time getting the needle in.
'I'm sorry, Your Honor. But this is a death penalty case. The law provides that this defendant should be held without bail. Further, the People believe there is substantial risk of flight.'
Freeman came back matter-of-fact. 'Your Honor, Mrs. Witt will surrender her passport. She has never been accused, much less convicted, of any crime. There is no basis in Mrs. Witt's history or in fact for the prosecution's contention that there is a risk of flight. She has stayed in the City since December, and she must have had some inkling that she was under suspicion during that time. She did not resist arrest.'
'All right, all right.' Thomasino peered over his glasses. 'Nevertheless, Mr. Freeman, at that time she was
