'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.
With the Lightner business being introduced, despite David's best efforts to neutralize it, the wind had seemed to go out of the defense's sails. Of course, Freeman would never admit defeat, or the likelihood of it, and he was doing his best to keep the ship sailing, but the ballast – the weight of all of Jennifer's apparent lies – now seemed to be just too much. There was a scrambling feel to the defense now, a sense that all the arguments and pyrotechnics weren't leading to the truth, weren't in the service of justice, despite Freeman's arguments.
The jury wasn't going to vote your way if you didn't convince them there was an alternate truth that perhaps they just weren't seeing. For a while, even he had believed in the possibility of an alternate truth that might be convincing. He thought the jury would, too, and what was reasonable doubt if it wasn't that?
Now – maybe it was, after all, something in the air – but like the Giants and their sore arms, Freeman had started well but with the failure to come up with at least one convincing other dude, and the bombshell about Lightner and Jennifer, well, he feared the season could be over.
On Monday Jennifer was escorted into the courtroom by David Freeman on one side and the bailiff on the other. As opposed to the fashionable clothes she had been wearing throughout, she wore a maroon runner's outfit and some high-tech tennis shoes. Her hair was tied back in a ponytail, and Hardy thought she looked about seventeen-years-old.
When Villars ascended to the bench she immediately noticed the change and frowned. 'Mr. Freeman, would you approach?'
Hardy watched his partner chatting with the judge, nodding, gesturing. Voices didn't get raised, and in a minute Freeman was back at the defense table, smiling. 'What could she do?' he said.
Freeman called Lisa Jennings, the other jogger, who was dressed identically to Jennifer. The gallery caught it, and Villars rapped her gavel a couple of times, calling for order.
Lisa did not look exactly like the defendant, but in their matching outfits, with their hair cut the same, – Freeman had paid Lisa to cut hers – there was no denying the similarity. Lisa was a little thinner and an inch or two taller, but they were both medium-boned, attractive blonde women in their twenties.
Hardy thought Freeman shouldn't have Lisa say a word. He should just call Alvarez and see what happened. But Freeman could no more do that than he could whistle with a mouth full of thumb tacks.
Though Hardy had warned Freeman – often and vigorously – that Lisa's testimony could be chopped up and masticated by Powell, still the old dog wanted to introduce it to the jury. 'It'll ring true,' he had told Hardy. 'You wait.'
And, in fact, he was right. Lisa's testimony itself – stopping at the house, hearing the shots, running off after a minute or so – all of it did ring true.
The problem, as Hardy had argued again and again, was that even if it had happened, they had no way to prove it had happened on December 28.
And Powell – no surprise – did not seem inclined to let that omission slide.
'Ms. Jennings, how often do you run down Olympia Way in the course of, say, a month?'
'Several days a week, I'd say.' She may have been nasty to Hardy when he had first tried to corral her, but Lisa came across as a cooperative, even friendly person. Now that she was here, committed, she wanted to please. 'Maybe… fifteen, twenty times a month.'
'And you've been doing that for how long?'
'A couple of years, I'd say. Almost three.'
'So you run by Mrs. Witt's house what… about two hundred times? Something like that?'
'Yes.'
'And do you keep a log of where you've gone on which days, which route you've run?'
Lisa looked at Freeman, then back at Powell. 'No, I just run.'
'So, you don't know for a fact when you heard these noises on Olympia Way that you've just testified about, do you?'
'Well, I only heard them once.'
'Two noises, like gunshots?'
'Yes.'
Powell nodded, taking his time. He looked over at the jury, his face showing a question mark. 'I see. And hearing these gunshots, did you report them to the police?'
'No.' Lisa rolled her shoulders, moving in the seat.
'Why not?'
'I don't know. I guess I didn't think they were gunshots.'
Wide-eyed wonder broke out over Powell. 'Oh? Why didn't you think they were?'
'I'm not sure. I guess that at the time I thought they were backfires or something.'
'Could they have been backfires?'
Freeman, trying to save her, stood up and objected, but before he could even give grounds, Powell withdrew the question. But came right back. 'You've mentioned the phrase, 'at the time.' This was on December 28, last year, is that right?'
Again, Lisa looked at Freeman. 'I didn't say that.'
'No, you didn't. That's why I ask.' Powell smiled, a gentleman, only trying to get to the truth of the matter. 'Take your time.'
'I don't really know what day it was.'
The wonder appeared again. 'But surely it was last winter.'
'I think it was. I know it was several months ago.'
'Might it have been longer?'
'Your Honor! Counsel is badgering this witness.' Freeman was standing, but he was going to lose and he knew it. He did.
'I don't think so,' Villars said. 'Overruled.'
