"She's attractive, right?"
Hardy nodded.
"Young?"
"The file says twenty-eight."
"Twenty-eight's young, okay. Humor me on this one." Freeman himself was perhaps fifty-five. Hardy thought he didn't look a day over eighty. "Okay, so she's young and attractive and crying – of course, you want to believe her. And guess what? She knows you want to believe her. Whether or not she did these horrible things to her husbands, she's aware of the effect crying has on a normal red-blooded male such as yourself. And that effect is… you want to believe her, want to make her feel better. You want more than anything to get her to stop crying, don't you?"
Freeman took the cigar from his mouth, spit out some leaf, reinserted it. "And while we're at it," he said, "tell me honestly. This is my personal public-opinion poll. She do it, or not?"
"I don't know. I leaning to not."
"None of it?"
"I don't know."
"What part of it don't you know?"
"The boy… Matt. And if she didn't kill him, the rest of it falls apart, doesn't it?"
"You don't think she killed her kid?"
"I don't see it."
"Why? And don't tell me you don't think she's the type."
"Well, two reasons," Hardy said. "One, she didn't just deny it; I thought she seemed genuinely stunned that anybody could think she'd done it. She didn't even want to talk about it, David. I mean, she acted like it was all a weird mistake that would get cleared up. As for killing her own son, how could anybody believe that?"
"Diz, Diz. Let's just, for argument's sake, say she did it. And if she did it, it was for the insurance money. We agree here? Good. Okay. This is a high-risk position, deciding to kill somebody. People do it all the time, but people who do it for money, they're a different breed. Jennifer Witt decides in cold blood to do this deed, she's sure as hell not going to admit it. She's taken a risk – already taken it – and she's going to get the whole banana or go down in flames. Believe it. Now, what's the other reason?"
Hardy had said there were two reasons he thought Jennifer might not have done it – Freeman had given an argument refuting the first and now wanted the second. "I just don't think she's the type?"
Freeman went back to reading. "I charge by the hour," he said, "and I don't charge enough."
Hardy accepted the reprimand in good humor. "Take out the son Matt and the case doesn't look very strong against her."
"We can't take out Matt. Matt was there, Diz. I wish to hell he hadn't been, but that's what we got. Powell's not going to let it go – it's what's putting our girl face-to-face with the gas chamber. It will influence a judge."
Hardy had had this discussion before. Even if Jennifer did kill her husband Larry, and Hardy was not convinced of that, he was at least certain that Matt's death had somehow been an accident, a random, tragic wild card. But now that card, like it or not, had been dealt to them. It was their hand and they had to play it. "I still think the right jury could walk her," he said.
"The right jury could walk Attila the Hun. But don't count on it in this case."
Freeman leaned forward, put an avuncular hand on Hardy's shoulder. For not the first time, Hardy marveled that Freeman was so successful and even downright likeable. As always, he needed a shave. His lips were thick and purplish. His rheumy eyes had yellowish whites, the skin around them flecked with liver spots. He was handsome as a leprous warthog, if warthogs got leprosy. "The smart money doesn't put too much on the jury. If I go along with believing she's innocent, you know, I actually hurt her chances. You realize that?"
"How do you do that?"
Freeman looked around the empty room, making sure no one was eavesdropping. "It's a tightrope walk. You want to convince yourself that you're defending an innocent person – that much is all right, it's part of it. But if you actually start to believe that your client is innocent, you're going to assume that the jury's going to see what you see. You'll convince yourself that they want to believe you, your interpretations of the facts."
Hardy picked it up. "And those arguments, because you didn't have to make them to yourself, just aren't 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.