Two jurors had their arms folded. A bad sign for the defense. Bill Costopoulos slid down in his chair. He rested his head on the back. He knew something.
Judge Lipsitt said, "Good morning, ladies and gentlemen. The court has been informed that the jury has reached a verdict. Would the foreperson hand the verdict forms to the clerk, please."
The clerk took the forms from the woman selected and said, "In the case of The Commonwealth Versus Jay C. Smith, number 1677, the charge of murder, how do you find the defendant?" "Guilty. Murder in the first degree," she said.
"In the case of The Commonwealth Versus Jay C. Smith, number 1677a, the charge of murder, how do you find the defendant?"
"Guilty, murder in the first degree," she said.
"In the case of The Commonwealth Versus Jay C. Smith, number 1677b, the charge of murder, how do you find the
defendant?"
"Guilty, murder in the first degree," she said.
Costopoulos requested a jury poll and the courtroom heard "Guilty, murder in the first degree" thirty-three more times. Jay Smith didn't so much as twitch.
When they were finished, the clerk said, "Will you please rise. Hearken to your verdict as the court has it recorded. In The Commonwealth Versus Jay C. Smith, the charge of murder, you say guilty in the first degree. So say you all?"
"We do," they said.
Pete Hunsberger touched his wife's arm as each count was uttered. Pete and Dorothy Hunsberger heard two additional counts of murder that no one else heard.
The lawyers immediately had a conversation at the sidebar where Bill Costopoulos reminded Judge Lipsitt that Judge Garb had precluded the penalty phase from going to the jury in the case of William Bradfield. He asked the court to adopt the same position.
Guida argued that in the Bradfield case Judge Garb had reasoned that William Bradfield was not convicted of the actual killings, but was an accomplice. Nor had the prosecution proven to the judge's satisfrction that he had contracted the murder. In this case, Guida argued, Jay Smith was the actual murderer.
Judge Lipsitt quickly denied the request of the defense and the penalty phase was ordered to begin.
"Members of the jury," the judge said, "you have now found this defendant guilty of murder in the first degree in connection with three cases. Your verdicts have been recorded. We are now going to hold a sentencing hearing during which counsel may present additional evidence and argument.
"You will decide whether the defendant is to be sentenced to death or life imprisonment. Whether you sentence the defendant to death or life imprisonment will depend upon what, if any, aggravating or mitigating circumstances you (bund present in this case."
When the judge had finished, the moment had at lost arrived. Jay Smith stood and walked tall and erect. He took the stand and sat easily. He was a bit more pale and gaunt than he had been, but at the moment looked to be in far better emotional condition than his lawyer. His eyes had all the expression of a pair of hubcaps.
"Mister Smith, please state your full name for the record," Costopoulos began.
"My name is Jay Charles Smith."
"Your age, sir."
"I will be fifty-eight on June fifth of this year."
"Where were you born?"
"I was actually born in Ridley Park, but lived all my life in Chester, Pennsylvania."
"Do you have any brothers or sisters?"
"I have three brothers living, one brother dead, and one sister."
"For how many years were you married before your wife passed away?"
"Twenty-eight years."
"When did your wife pass away?"
"On August seventh, 1979."
"From the date of your imprisonment, what have you done in the institutional environment in which you live?"
"Well, I've been involved in a large number of activities. I don't know whether it was you or someone else who mentioned the jailhouse lawyer. I was known more as a jailhouse guidance counselor because a great amount of my activity was helping individuals with their personal letters and personal problems.
"I handled fifteen Vietnam veterans, the Agent Orange cases, to get these individuals their medical examinations and get diem their proper discharges. I worked with a large number of Hispanics who couldn't speak English.
"I taught a class for inmates called 'How to Get a Job,' showing them how to make out applications and construct r6sum6s and keep files.
"I worked a lot in the church activities, not that I'm an expert on it. I was more of an organizer. I was president of the God Squad for three years. When there was no minister I
handled all the church activity at the prison. I would bring in ministers and set up the ceremony. 1 handled the Bible study.
"I did my regular prison job. I handled the dayroom, handled all the books and papers, kept it clean.
"I've worked for over four years on a criminal justice dictionary. That was my main writing activity."
"How does the request for two back issues of Penthouse tie in with that?"
"I've found that Black's Law Dictionary and Ballentine's do not cover criminal justice definitions very well. I had inmates bring up words that they know, then I went through about fifty or sixty sociology and criminology textbooks and began writing definitions in die criminal justice dictionary.
"There's nothing in Black's Law Dictionary about the Muslims. In prison the Black Muslims and the Muslim faith have grown tremendously. You have a great deal of trouble in the criminal justice system finding out about corrections, especially halfway houses, furloughs, leaves of absence. Most lawyers do not know very much about corrections."
"It's in that category, corrections ..."
"The Penthouse. Let me answer how I got to the Penthouse. I found over the past five or six years a number of crimes involving battered wives and child abuse.
"If you look at those issues, you'll find that they have Yoko and John Lennon in there. John Lennon beat up Yoko. I was considering her as an example of a battered wife because John Lennon is known throughout the world.
"Also John Lennon in the article kicked his child, Sean. Yoko thought he was going to kill him. This was a child abuse item."
"Did your having possession of those two Penthouse magazines have anything to do with Charles Montione?"
"Nothing whatever."
He looked as banal as Adolf Eichmann. He'd just been convicted of murdering a woman and two children, and he was now describing to the jury how he was writing dictionary definitions of child abuse, as emotional as a grapefruit.
Then he went on to describe how he'd helped Charles Montione and Raymond Martray, who'd betrayed him with their false testimony. And just so he didn't disappoint anyone by failing to offer a sexual innuendo, he gave the jury a news flash: one of the witnesses against him was homosexual, even though Dr. Jay had always tried to "talk him out of it."
Bill Costopoulos asked, "Mister Smith, since your arrest for
the death of Susan Reinert and the disappearance of her children what have your living-conditions been?"
"I've been kept in the hole ever since."
^Explain to the jury what that means."
"I'm not allowed any communication or calls. I'm not allowed to visit with my relatives except one time every two weeks when they're behind a screen. I get no religious activity whatever. It's the only place in the United States where you're not permitted to have any church services."
"Did you want to testify before this jury during this trial?"
"Yes. It was my feeling to testify because I felt the jury was entitled to hear my side. You said if I didn't testify it couldn't work against me. I mentioned to you I didn't think they could bring up the previous conviciton. That shows you how much of a jailhouse lawyer I am."
"Mister Smith, if this jury would spare your life, are you aware that you will spend the rest of your natural life in the prison system of this commonwealth?"
"I don't think there's any doubt about that."
&
nbsp; "If this jury would spare you your life, what would you do within the prison system until your natural death?"
"I don't see any major changes. I would go on as I am, trying to help people when I could, trying to work as closely as possible with my family so they can get over the disgrace. Finish the criminal justice dictionary and work in the church.
"I guess I would complete the Agent Orange lawsuits against Dow Chemical. Probably I'd start teaching again. I volunteered to teach English and reading. I'm not permitted to teach subjects where they have a hired position although that's what I could really do best."
"Mister Smith, are you asking this jury to spare your life?"
"Absolutely. Of course."
After Bill Costopoulos sat down, Rick Guida's first question was "Where are the bodies of Karen and Michael Reinert?"
"I do not know," said Jay Smith.
"You do not know?"
"I do not know."
"Where did you kill Susan Reinert?"
"I did not kill Susan Reinert or her children. I had nothing to do with Susan Reinert."
"In other words, what you're telling this jury is that they made a terrible mistake, isn't that right?" "All my life I've lived in the American system. I think they've made their decision honestly on the basis of what they were given. We accept their judgment. They say I'm guilty; I'm guilty. You asked me if I think I really did it? I didn't do it. I respect their judgment."
"I didn't ask you if you think you did it. Did you do it or didn't you?"
"I said I did not."
"It's not a thinking process. You know you didn't do it and these people made a horrible mistake, but it's just the American system. Is that right?"
Costopoulos stood and said, "I object! He's arguing!"
"Yes," Judge Lipsitt said. "I don't think you should argue with him. You just ask him the questions and don't argue the point."
"Let me ask you this," Guida continued. "Are you telling us that you are not upset even though you've been unjustly convicted of three counts of murder in the first degree?"
"Yeah, I'm upset," Jay Smith said. "But I'm not the kind who falls apart. I've had enough military training. I can take whatever happens to me."
"Where were you during the weekend of June twentysecond, 1979, between ten o'clock at night and noontime on June twenty-fourth, 1979?"
"Your Honor, I'm going to object!" Bill Costopoulos said.
"I agree," said the judge. "You can't go back into the case."
"He's accepted the verdict!" said Costopoulos.
Guida was relentless. In all these years it was his first and last shot at the prince of darkness. He said, "Your Honor, may I explore who he was with during that time period?"
"I think I've sustained the objection. You have a jury verdict."
The prosecutor turned to Penthouse magazine.
"Mister Smith, on direct examination you indicated that you wanted issues of Penthouse so that you could write a legal dictionary, is that correct?"
"I am writing a legal dictionary, yes."
"What specific word did you define in your dictionary using the Yoko Ono article?"
"'Battered wives.' I'm not saying that I completed the total entry. 'Child abuse' and *battered wives' are the two terms I was going after." "How long an entry in your dictionary did you plan for 'battered wives'?"
"I would say twenty-five words."
"In order to get twenty-five words for the dictionary to define the term 'battered wives,' you ordered two copies of Penthouse, is that right?"
"That's correct."
The prison library has a lot of books, doesn't it?"
"The prison library has very few books, Mister Guida. I had purchased my own books. I had over one hundred and fifty books in my cell including a full encyclopedia set."
"You, of course, have a Ph.D. in education?"
"I'm a doctor of education."
"As part of that you did extensive research both in your masters and your doctoral theses, did you not?"
"Correct."
"Are you saying that given your educational background, your knowledge of libraries ana books, and the places to find information, that the best place for you to get a definition of 'battered wives' was in the issues of Penthouse magazine?"
"On those two celebrities. Yes."
"In other words your dictionary was going to include a list of famous cases, is that right?"
"That's right."
"Were you also going to include the Ted Bundy case?"
"Absolutely."
"How about the Jeffrey MacDonald case from Fatal Vision?"
"I had those books in my cell."
"As a matter of fact, you had a lot of books on Ted Bundy."
"I had three. I consider him to be the first major serial murderer."
"Also, Fatal Vision. Correct me if I'm wrong. That's the man who killed his wife and two children?"
"Yes."
"A woman and two children?"
"No. It was his wife and two children."
"She's still a woman, isn't she?"
"Of course, she's a woman."
It was starting to look as though Guida never wanted this case to end-until he sensed that the jury had had enough. He ended abruptly.
Bill Costopoulos said, "Mister Smith, is there anything else that you wish to tell this jury, your peers, before they pass judgment on life or death?"
"The only thing I wanted to mention was that comb," Jay Smith said. "I spent twenty-eight years in the army reserves. Twenty-eight years. I spent every Wednesday night for twenty years doing reserve work. I'm the one who originated the idea for the comb.
"We had trouble getting into schools to talk about recruiting because it was very antimilitary back in the sixties. There was a television program called 77 Sunset Strip. On that program there was a fellow who was a detective. He used to comb his hair. They had a song called 'Kookie, Kookie, Lend Me Your Comb/lliat's where I got the idea to hand out combs with the 79th USARCOM decal inscribed on it. That comb now works against me.
"I did not kill Susan Reinert. I never had anything to do with Susan Reinert. Nothing whatever. Nothing. Never saw her off school property at any time. Never saw her children."
"Nevertheless," said Costopoulos, "you accept the judgment of your jury?"
"Of course. They're honest people. They made an honest decision. You accept it. That's the way it goes."
"No further questions," said Costopoulos.
"Nothing further," said Cuida.
Jay Smith just gave a little shrug.
"Let's hear arguments," said the judge.
Bill Costopoulos had said during the trial that he didn't even like to think of this eventuality, arguing for a man's life. He said the mere thought filled him with dread.
Only now was it possible to see just how much Bill Costopoulos dreaded this moment. .He arose, faced the jury, and said, "May it please the court, Mister Cuida, and Jay. Ladies and gentlemen of the jury, I, like Mister Smith, believe that this is the greatest system in the world. I'm not questioning the verdict that you twelve honest people have reached.
"Jay Smith has always maintained to me, as he has to this jury, that he did not murder Susan Reinert. He did not murder those children. I don't know, but I think you can appreciate the frightening position I'm in . . ."
It was a stunning moment in the trial. When Bill Costopoulos said the word "frightening" his voice cracked and broke. He was frightened. The tears started to roll down his
cheeks and he continued his final argument while swallowing them back.
He said, "The Supreme Court of Pennsylvania has (bund capital punishment to be legal. Thus, in your deliberation on the question of punishment, you are to presume, if you sentence Jay Smith to death, that he tvill be executed.
"You are to presume, if you sentence Jay Smith to life imprisonment, that he will spend the rest of his life in prison. You will make no other presumptions.
"The life he will lead
in prison is no life at all. For all practical purposes, he began his life term on June twenty-fifth, 1979. Since his arrest for murder in 1985, the man has lived in a hole. He lives by himself. He's got minimal contact. They transport him in handcuffs and shackles.
"He has elected between the two options of death and that kind of life, to die in our prison system. I'm asking you to let him do that. Thank you."
It was an effective plea by a passionate lawyer. There were even a couple of reporters brushing at their eyes.
The prosecutor, as always, talked longer than the defense lawyer. He began by saying, "When we picked this jury a month ago, I told you that this day might come, and it's here.
"When I sat at lunch I think I probably felt exactly the way you're feeling right now. I'm not standing here to tell you I like the death penalty, or that I want people to die. I don't think that any one of you feel that way either. The question is not how we feel, but what the law requires. If we liked the death penalty, if we felt that we really wanted people to die, we wouldn't be at these chairs, we'd be at Mister Smith's."
After a long argument in which he described the aggravating circumstance in this terrible murder, he said, "You've made a determination. You've made a commitment to obey the law. It is now your obligation to do what the general assembly says is proper and what the community says is proper. Sympathy, bias, prejudice should not be part of your decision. For the children, I thank you."
In actual deliberation time, the jury used only five hours for the guilt verdict, but needed six for the penalty verdict. It was bably a tribute to Bill Costopoulos in his plea for Jay Smith's
After seeing Jay Smith in action, no one could doubt his
lawyers decision not to let him testify. Even if there hadn't been the convictions in the Sears thefts which he would surely deny as he'd denied everything in his life except parking tickets, the man could not have taken the stand.
While his lawyer was being smothered by fear and dread of his awful responsibility, Jay Smith had just shrugged. That's the way it goes.
No matter how you'd try to package Jay Smith, no matter how placid and scholarly he tried to be, he still danced to his own tune. He'd do his own lonely jig, barely noticing the twelve people who were considering a sentence of death.
Echoes in the Darkness (1987) Page 41
