There was a silence, then: “Life, huh?” Restoffer said. “Anyway, I thought I’d give you what I found, see if you get lucky.”
“Well, I appreciate it, Floyd. I really do.”
“Listen, if you get so you’re closing in on this, I’m here.”
“Got you.”
“Later.”
44
Hardy climbed the Hall of Justice steps. It had turned cold overnight and the morning sun shone bleakly, as though through a gauze, just enough to cast its long shadows.
He had never believed he would miss David Freeman, but the schlumpy, gruff, arrogant presence would have been welcome now. He entered the building, passed the metal detector and went downstairs to the cafeteria, not yet mobbed as it would be later. He ordered a cup of coffee, went to a table and opened his briefcase, taking out a fresh yellow legal pad and a black pen.
It was 7:40 and the penalty phase was to begin at 9:30.
He had wrestled with his options for an hour before talking to Floyd Restoffer, and in the end had decided that time had simply run out to pursue things on his own down in Los Angeles. If it absolutely came to that, he would, but meanwhile he had a defense to conduct—Jennifer Witt would be sentenced to death unless he had some reasonably effective argument that she should not be.
And, of course, he couldn’t use his best one.
But the penalty phase of the trial gave him more leeway than Freeman had had. The guilt phase was interested in the weight of evidence, in proof, in determination of the facts. By contrast, the penalty phase explicitly contemplated—indeed mandated—the introduction of factors that might persuade a jury of the defendant’s mitigating human qualities. So Hardy could bring up those things about Jennifer—her life as a wife with her husband, what a good mother she had been. He could talk about her childhood, her friends, even her pets. His problem was that over the past week, at the rate of a couple of hours with Jennifer every day, he hadn’t discovered much more about her life than he’d already known, and he suspected that not much of Jennifer’s life story—the part he could tell—was going to move the jury to empathy.
Larry Witt had not allowed her to make or keep any friends, and she had acquiesced. She wasn’t even allowed to be involved in Matt’s school life. She didn’t visit her parents or her brother. There were no pets. Those few times they went out to dinner, or to one of Larry’s social engagements, she played the role of an aloof beauty, the wife as a trophy.
She insisted on denying the terrible reality that she had been found guilty. Hardy hammered over and over the fact that from the jury’s perspective she was a multiple murderer. This was a hard truth but it was the truth. She avoided it, as she had so many other hard truths in her life.
Finally, they did reach a compromise of sorts. Hardy could bring up what he saw as humanizing issues, in effect pleading for her life as though she were in fact guilty, so long as he left out any reference to Larry beating her. In return, Hardy must continue to bring up alternative theories for the killings; she was not letting go of her idea that this possibility—that someone else had done it—would at least plant enough doubt to keep the jury from voting the death sentence. And no matter her situation and Hardy’s dose of reality, she still seemed to cling to the hope that somehow the real killer would be found and she would be entirely cleared.
So, based on the YBMG material, and in the face of David Freeman’s warnings, Hardy spent half the night arranging and, he hoped, buttressing the argument that a hit man had killed Larry, and the reasons he had for doing so. To that end he had subpoenaed Ali Singh.
Trying to portray Jennifer as a model of sweetness and light proved to be somewhat more difficult. She just wasn’t the girl next door and had never pretended to be. A difficult, moody child, she had grown up, as everyone in the courtroom had seen, or thought they had seen, into a difficult, moody adult—haughty, cool, secretive, self-destructive. That was too often her persona, showing rarely what was beneath it. The jury could not properly consider many of the things she had done since the arrest, but Hardy believed that one way or another they knew as much as he did, and would be unlikely to be able to forget it.
Here was what the jury was working with, Hardy noted down: After killing her husband and son, Jennifer had gone out for a jog, setting up an alibi—her stop at the ATM—that almost had sold them. Then by a clever ruse she had broken out of jail, remained at large for three months, during which she continued an affair with her psychiatrist (so much for the loving wife).
Though the judge had instructed the jury that there was insufficient evidence to convict Jennifer of murdering her first husband, Hardy doubted that any member of the jury didn’t think she had. They’d no doubt remember that, too, when the time came.
Yes, she was pretty. To some of the men she might even be beautiful, but even that, Hardy suspected, played against her—she seemed by her appearance of aloofness to think she was above it all, including the law. More tears would have helped, but Jennifer fought tears.
It had taken Hardy almost a whole day to hammer out the jury instructions that Villars would give after argument, just before the jury got the case.
“Ladies and gentlemen. Good morning.”
Powell stood in the at-ease position about twelve feet in front of the judge’s bench, eight feet from the jury box, facing them. His voice was low, his tone relaxed—though it carried well enough. It looked as though he was going to be keeping out the theatrics, reasoning that the jury might well have had enough of them.
Another problem was that Powell’s lead in the polls had jumped over the weekend—he was now leading his nearest opponent by seven points and seemed to be heading for election on the first ballot. Hardy had a feeling some members of the jury were aware of this, and if that were the case, it was more bad luck for Jennifer. Powell’s authority and stature would tend to increase if the jury saw him as the Attorney General of the State of California rather than as just another working stiff prosecutor. But this, again, was something Hardy could do nothing about.
Powell continued: “Around these United States of ours, a murder is committed about once every two hours, every hour of the day, every day of the week, every week of the year. Until only a few years ago the death penalty was a relatively common punishment for a person convicted of murder, as well as for so-called lesser crimes such as rape, and even some types of armed robbery.
“That has changed now in our so-called enlightened age and we live in a society and a state that sanctions the death penalty for only the most heinous of crimes—murders involving special circumstances, which include, as Judge Villars has told you, multiple murders, lying in wait, murder for financial gain, murder of a police officer.
“You have found Jennifer Witt guilty of murder, and guilty of two of the special circumstances I have just referred to—murder for financial gain and multiple murder. That is no longer in dispute. In this phase of the trial, I am going to be showing you why the State of California is asking for the death penalty.
“First, in the strictly legal sense, the laws of this state have decreed that the nature of these crimes compels the ultimate punishment. But, of course, there is an even larger issue here, and that is the nature of the murderer, a nature so devoid of mercy and feeling that she could—and did—cold-bloodedly plan and execute the murder not only of her husband, but of her own flesh and blood, her only son.”
Hardy as well as Powell knew that this was the baldest of opening-statement rhetoric, but it was powerful and legally accurate. While no one had ever before in these proceedings claimed that the murder of Matthew Witt had been anything but accidental, his death by gunshot had occurred in direct consequence of and during the commission of another “cold-blooded” crime. Any person planning the first crime would have to see, inherent in it, the possibility of the second. That, at least, was the prosecution’s point. In that sense, legally, the two crimes were of the same magnitude, or sufficiently close so that Hardy decided he couldn’t
object and be sustained.
Powell stopped and turned his whole body toward Hardy and the defense table. Jennifer, now on Hardy’s left—she had been on his right throughout the guilt phase—seemed to jut out her chin and stare straight back at Powell. Hardy had his hand over her wrist—she was shaking. He squeezed to signal her—it wouldn’t help her to get involved in this visual exchange of defiance, a game of chicken.
But the references to her son Matt earlier in the trial had been few and glancing—this was an escalation, and Jennifer was taking it hard. She pulled her hand from under Hardy’s.
“You’re such an asshole,” she said out loud, unable to restrain herself.
The courtroom exploded.
Powell stood openmouthed, but no doubt pleased. Let her hang herself. Villars was calling for order, pounding her gavel. Behind Hardy, the gallery was humming. He put his arm around his client, pulling her to him and telling her to shut up right now.
Over the din Villars was trying to be heard but to little avail. Jennifer was starting to stand up, about to say something else. Hardy squeezed her arm again, trying to keep her down, to save her. “Ow.” Turning on him. “You’re hurting me. Let me go.” She wriggled her arm free, now facing the judge, now the jury. A fury, cornered and suddenly mute. The two bailiffs were closing in on the defense table.
Hardy leaped up, reaching for her and at the same time trying to motion to the bailiffs that they didn’t need to interfere. His voice quiet, hands outstretched, he kept repeating, “It’s okay. It’s all right . . . ” Except, of course, it wasn’t. She was killing herself.
Villars stood at the bench, her gavel forgotten. Behind Hardy someone said Jennifer’s name and she turned. Ken Lightner had gotten to the front of the gallery and Jennifer went into his arms across the railing separating them. Protectively, his big hands caressing the top of her head, as a parent might do to comfort a child, he held her.
The bailiffs, rooted where they had stopped, waited. The crisis had lasted less than a few moments and appeared to be over. Villars sat down. Powell appeared bemused. The judge tapped her gavel and called for a recess, then ordered Hardy to see her in her chambers.
Villars’ usually gray visage was almost crimson. Powell did not say a word.
“She won’t do it again, Your Honor—”
“Damn right she won’t do it again!” The judge spoke quietly, standing behind her desk, hands down on it, leaning on them. “If I don’t gag her and she does do it again, Mr. Hardy, I’ll hold you responsible. You won’t sleep at home for a week.”
Hardy, expecting a rebuke, was brought up short by Villars’ tone—more personal than he’d expected. He decided it would be a good time to bring it out into the open if something was there.
“Do you have a problem with me personally, Your Honor?”
“I have a problem with your client disrupting my courtroom. That’s my problem. You got a problem with that?”
“I don’t think that’s it,” Hardy said.
Villars straightened up. “What?” She squinted at him. “What did you say?”
“I said I don’t think that’s it.”
The judge’s eyes narrowed. Her voice came out raspy, choked with anger. “My courtroom is a goddamn model of fairness, Mr. Hardy. Justice is hard enough to come by, so I bend over backwards to go by the rules and try to be evenhanded, and I resent the hell out of anybody suggesting that I don’t.”
“I haven’t said it got into your courtroom, Your Honor. But I noticed you fined David Freeman for contempt and now you’re threatening me with the same thing or time in jail.”
“I’d do the same to Mr. Powell. Don’t flatter yourself.” She glanced at the prosecutor, who was doing his wallpaper imitation. “Nobody gets to yell obscenities in my courtroom. Nobody. Freeman got out of line, as he does often. It’s not a personal thing with me, as you seem to think. The main reason I’m not going to gag your client is that it would further prejudice the jury against her. Beyond what she’s done all on her own. Nevertheless, you have guaranteed her behavior and if she goes over the edge again I’ll take appropriate steps. Against her and against you. Clear?”
“Perfectly.”
She continued to glare at him.
“Your Honor,” he added.
Powell’s statement took another hour, taking them to lunch. As he went on, Jennifer kept a grip on Hardy’s arm, sometimes squeezing hard enough so it felt like she was cutting into his skin through his coat sleeve and shirt.
The thrust of Powell’s new argument “in aggravation” was that implicit in Jennifer’s planning to kill her husband for the insurance was the realization that it might be necessary to kill her son too! That it wasn’t a “mistake.” The boy hadn’t just gotten in the way. She knew he would have to be there and she knew she might kill him, might have to.
Hardy thought Jennifer might leap out of her chair and attack Powell, and he almost felt the same. Powell was really going all out.
“Who will speak for the victim?” Powell had concluded. “If a person who has planned to kill a child has not forfeited her right to live, then what, as a society, have we become? What greater violation of trust can there be? And what punishment, other than the ultimate, can begin to balance the scales?”
Miraculously, Jennifer had somehow borne it quietly. Tears, quickly and angrily wiped away, had begun on several occasions, but by the time he had finished she seemed composed.
“Cut that bastard’s balls off,” she said to Hardy as Powell was walking back to his table. He prayed that none of the jury had heard her.
“You’ve heard Mr. Powell characterize Jennifer Witt as a person who, by the very nature of her crimes, has forfeited her right to live. And if, in fact, she has committed these crimes, I might agree with him.”
Without standing, Powell raised a hand. “Objection, Your Honor. The defendant’s guilt has been established.”
“I’ve acknowledged that, Your Honor.” Hardy hoped he had, enough. He thought his only chance—and it was slim—of getting any other theory of the murders admitted was to be crystal clear on what the jury had already determined. He wasn’t trying to undermine them—merely give them alternatives to consider.
Villars gave it a moment’s thought. “Just so that’s clear. Go on,” she said to Hardy. It was enigmatic enough—Powell took it as though he’d been overruled and Hardy would take anything he could get.
He inclined his head to the judge, then went back to the jury. “The evidence in the first part of this trial persuaded you that Jennifer was guilty beyond a reasonable doubt. But now you are being asked to pass judgment on this woman’s life, and there is a different standard—a mistake here that leads to her execution cannot be rectified. If new, exonerating or at least mitigating evidence appears sometime in the future it would be too late.
“The law recognizes a concept, and the judge will give you instructions regarding it, called lingering doubt. Lingering doubt does not undo what you have found beyond a reasonable doubt, but it does contemplate a situation such as we have right here before us. Though you have found Jennifer guilty”—Hardy thought he’d best keep repeating this to make a following distinction—“let’s see what even the prosecution acknowledges that we don’t have, and why each of you, if you should vote the death penalty, might find yourself, over the coming years, with some very haunting and serious lingering doubt.”
Like Powell, Hardy had begun in the center of the courtroom, but as he began to loosen up, he moved closer to the jury box. He had all of their attention—this was, after all, his first appearance in a speaking role before them and there was a curiosity factor. But he thought it was more than that—up to this point, his statement seemed to be hitting a mark.
Slowing himself down, he went to the table, pretended to consult some notes, and took a drink of water. He returned to where he had begun. “Number one, ladies and gentlemen, we don’t have anyone who saw Jennifer Witt shoot anybody. Nobody. Not one witness. We ha
ve heard a witness, Mr. Alvarez, say that he saw Jennifer outside her house right after the shots. Mrs. Barbieto said that she heard Jennifer yelling inside the house before the shots, but neither of these are eyewitnesses to the shooting itself. And, let me remind you, Mrs. Barbieto was unclear as to how long exactly it was between Jennifer’s yelling and the shots, and there is the possibility”—even though they’d apparently chosen to disregard it in their deliberations—“that Mr. Alvarez saw someone else outside the house on that morning and thought it was Jennifer.”
“Objection, Your Honor. Counsel is arguing evidence.”
“I’m reminding the jury of previous testimony. That’s all, Your Honor.”
“This is not a round-table discussion, Mr. Hardy. But the objection is overruled.”
So he won one and got slapped on the wrist at the same time. Villars might, as she claimed, be fair to a fault, but that didn’t make her any easier to deal with. “Thank you, Your Honor.” He turned back to the jury. “What else does the evidence leave unexplained? True, Jennifer stood to collect five million dollars, presumably the motive attributed to her for these murders. But if that is the case—if this were a meticulously planned murder for money—where is the evidence of the planning? What was the fight about, the one overheard by Mrs. Barbieto? If Jennifer killed her husband, might it have been because they were fighting? Was it in the heat of argument, without any premeditation at all? Did Matt somehow, tragically, simply get in the way? These are questions that are not answered by the evidence. They cannot be answered.”
He paused again, letting his words sink in. “There are two final points I’d like to make to you. The first is this: that Jennifer Witt said and says she did not commit these crimes. You may dismiss this as self-serving, but her stance, her position, has never wavered throughout this trial. She has pleaded not guilty, and she has stuck with that throughout. She is not claiming she was temporarily insane, or pressured by issues beyond her control or”—Hardy took a breath—“or trying to escape an abusive situation at home.” He hurried on. “She could have said any of these things and hoped you would find her guilty, if at all, only of some lesser offense than first degree murder, death-penalty murder. But she did not do that. She has never done it. No bells or whistles, no fancy defense moves to save her life, and believe me, my colleague David Freeman has a few he can pull out if he’s asked to.”
The 13th Juror Page 42
