"Yes, that's right. I did infer that."
"She could, though, have been anywhere when the shots were fired, isn't that correct? Up the street, down the street, halfway across the city for that matter?"
Alvarez frowned and Powell objected.
"Are you going somewhere with this, Mr. Freeman?" Villars said.
Freeman nodded. "I am clarifying, Your Honor, that the witness could not possibly have known where Jennifer Witt was when the shots were fired. He assumed that she was inside at the time. But if it was not Jennifer at the gate…"
Villars nodded. "All right. I'll overrule the objection. You may continue, Mr. Freeman."
It was a good exchange, Hardy thought. Of course, it didn't preclude that Jennifer had been inside at the time of the shooting, but for the first time the jury was listening to a prosecution witness testify that he could not say for certain that she was. And after Freeman brought up Lisa Jennings, the doubt that she had been there at all would be even greater.
The question was read back to Alvarez and he reluctantly conceded that yes, in theory, Jennifer could have been anywhere when the shots were fired. "Except that she couldn't have gotten to her front gate in one minute from across the city," he added.
Freeman smiled warmly. "Indeed she could not," he said. "This is why I want you to be absolutely certain of your testimony, Mr. Alvarez, that you saw Jennifer Witt standing at her front gate. You are certain of that?"
Alvarez was not flustered but he surely was getting impatient. "Yes, I'm certain."
"But you've testified that she was looking back at the front door?"
"Yes."
"And after that she began running down the street?"
"That's right."
"And her house is where, in relation to yours?"
"It's just across the street."
"And Olympia Way is a flat street, is it?"
"No. It's fairly steep. Maybe a three-percent grade."
"And from the Witt home – is it exactly across Olympia Way from you, or a little uphill or downhill?"
Alvarez, with no clue what Freeman wanted, remained relaxed. He took a beat, though, to make sure that there wasn't a trap here. Not seeing it, he answered: "I consider it just across the street, but you're right, it is slightly down the hill."
Freeman remained crisp. "I didn't say anything I could be right about, Mr. Alvarez. You're saying it."
"So you were standing in your upstairs window, looking across and down the hill at Mrs. Witt, who was standing by her gate, and then, immediately, she began running down the street – that is, away from you. Is this your testimony?"
"Yes." Alvarez sat back, crossing his legs. His patrician face had gradually tightened and now he was frowning.
Freeman pounced. "All right, then, when did you see her face?"
Alvarez leaned forward. "When did I see her face?"
"That's right, Mr. Alvarez. If she was facing away from you the whole time, looking at her house, and then she started running downhill, when did you get a chance to see her face?"
Alvarez went with the only story he could salvage. "Well, I must have seen it from the side."
"You must have? You must have? Did you or didn't you?"
"Yes I did. I did. I saw her profile. I knew it was Jennifer Witt. It never occurred to me it wasn't."
"You mean it could have been so it must have been?"
"Your Honor!" Powell was on his feet. "Counsel is badgering the witness."
Freeman raised his hands theatrically. "Your Honor, this is a crucial eyewitness for the prosecution, and the jury needs to know that his positive identification of Jennifer Witt is, in fact, highly questionable."
Villars pursed her lips, disliking Freeman's histrionics but knowing he had a point. "Nevertheless," she said firmly, "Mr. Powell is right. You're badgering the witness. We'll strike the last question. You may proceed."
Freeman walked back to the defense table, took a sip of water, then turned back to the witness. "Mr. Alvarez, let's talk about the gun, shall we? Did you see the gun?"
"The gun?"
"Yes. The murder weapon which somehow made its way to a dumpster down the street by the park. That gun. Did you notice if the person you identified as Jennifer Witt was holding that gun as she stood by the gate?"
"There was something bulging at her side."
Freeman shook his head. "Mr. Alvarez, please, just answer the question. Did you see a gun?"
Alvarez didn't like it and neither did Powell, but there was nothing he could do about it. "No, but she was holding-"
Freeman held up a palm. "Please, Mr. Alvarez, that's all. Let's move along, shall we?" Freeman turned again to glance at Jennifer and Hardy. This, of course, conveyed his expression to the jury as well – they would know that at least from his perspective he was eating Alvarez's lunch. He turned back to the witness box. "The final point I'd like to ask about is along the same line I pursued with Mrs. Barbieto – how long is a minute?"
Villars pursed her lips, ready to squelch any histrionics before they got out of hand, but for all his penchant for showboating, Freeman was playing this cross-examination very straight, and Hardy doubted that he'd let his flamboyance sideswipe him when he was on such a roll.
"You've told us that you were at your wife's bedside, reading to her, when you heard the shots?"
"That's right."
"And then, after the second shot, you got up to look across the street, is that right?"
Alvarez nodded wearily and Villars instructed him to answer questions with words. Nodding again, he said, "Yes, I got up after the second shot."
"Immediately? Within a minute, say? Or less?"
"Perhaps slightly less. Somewhere between immediately and a minute."
"And then you walked to your front window?"
"That's correct."
"And how far is that from your wife's bedroom?"
"I don't know exactly, maybe twenty feet, I'd guess. Something like that."
"And you walked directly to the window? You didn't stop, for example, to go to the bathroom on the way?"
There was a nervous titter in the courtroom – Freeman was pushing the limits of Villars' endurance and knew it, but it played beautifully for the jury.
Alvarez didn't see the humor and answered soberly, "Yes, I walked directly to the window."
"And the person you saw at the gate was already there when you arrived, looking back at the house?"
"Yes."
The picture was clear to Hardy, but he wondered how many of the jury saw it. All of them would, he believed, after Freeman got through with his opening statement for the defense: Could Jennifer have killed Larry and Matt upstairs in her house, then run down the stairs, through the house, out the front door and up the walkway, and then shut the gate in the time it took Anthony Alvarez to walk twenty feet, give or take less than a minute? He doubted it, he thought the jury would doubt it, too, especially once Freeman tied in his jogger, Lisa Jennings, for the misidentification by Alvarez, mistaking Lisa for Jennifer.
*****
But Powell was not about to let Alvarez stand down on this, for him, low note. Trial rules permitted direct examination by the side giving its case-in-chief, then cross-examination by the opposition, then another round of questions should they be required by the side that had called the witness in the first place. This last round was the redirect, and Powell was up and rolling before Freeman got back at the defense table.
"Mr. Alvarez, just a couple more questions – how long have you known Mrs. Witt?"
"We've been acquainted for about four years. We went over and introduced ourselves when they moved in."
"Four years. And during that time, I take it you've seen her walking away from you?"
"Yes."
"And, obviously, in profile, haven't you?"
Alvarez finally started to loosen up with the friendly tone. He broke a smile. "Of course. Many times."
"And you have no doubt, personally, tha
t the woman you saw at the gate across the street after the shots was Jennifer Witt."
To his credit, realizing what it meant, Alvarez took some time, staring at Jennifer. "I have nothing against the woman, but it was her."
"Your Honor!"
"All right, Mr. Freeman. The jury will disregard that last answer. Mr. Alvarez, please just answer the question."
The court recorder, Adrienne, read back Powell's question, and this time Alvarez answered simply: "No. No doubt at all."
To which Freeman could not object.
*****
Officer Gary Gage took the stand in his uniform. He was about forty, a veteran patrolman, the officer who had responded to 911 and who had discovered the bodies.
"And the front door was locked when you arrived?" Powell said.
"Yes. The neighbor" – he consulted his notes – "Mrs. Barbieto, came out when I got there. We talked for a few minutes and then I went over and knocked on the door, and then I tried to open it, but it was locked."
"And what time was this?"
Gage reluctantly replied. "I got there at 10:10, so this must have been maybe 10:15."
Powell frowned. "But you received a dispatch from 911 much earlier than that, didn't you?"
Officer Gage nodded. "Yes, sir. We received a DD call – that's Domestic Disturbance – at 9:40."
"Exactly 9:40?"
Gage again looked down at his notes. "That's what I've got here, sir, 9:40. They radioed it through to me." Gage shrugged. "It was after Christmas. A lot of people were having family fights. Sometimes it takes a while."
Powell nodded, walked back to his table and took a yellow sheet from his assistant, read it, put it back down. "What did you do then?"
"Well, I was going to go check around the back, but just then Mrs. Witt came back from running. She asked what I was doing there, and I explained about Mrs. Barbieto's call, hearing some yelling between her and her husband, maybe some shots."
"How did she respond to that?"
Gage fidgeted slightly, raising his eyes to take in Jennifer. He wanted to get it out straight: "She, uh, she told me there wasn't a problem anymore. She had just been out running. Obviously, if there had been a fight, it was over."
"Did you get the feeling she was dismissing you?"
Freeman objected to that and was sustained, but Powell didn't break stride. "What did you do then?"
"I told her I'd rung the doorbell and no one had answered. She said her husband had probably gone out to cool off, just like she had. And taken her son."
Next to Hardy, Jennifer was whispering to Freeman that she hadn't wanted the cop to have to confront Larry because she knew he would beat her up for getting the police involved.
Gage was going on. "I said I'd like to see the house, make sure, in view of the suspected shots, that everything was okay. She again told me she was sure that everything was in order but I insisted, so finally she opened the door."
"And then what happened?"
Gage swallowed. "Well, I smelled the gunpowder immediately, so I told her to sit on the couch. I drew my weapon and began to walk through the rooms of the house, first downstairs then up, until I found the bodies."
The courtroom was still. Gage was sweating, apparently reliving the moment – Jennifer seated on the couch in the living room, waiting while he looked…
"And what did you do then?"
Gage took a breath. "I came out onto the railing and looked over and down at the defendant, at Mrs. Witt there. I said, 'Stay here, please. There has been a shooting'."
"And what did she do?"
"She looked up at me and said, 'I know'."
*****
After the lunch recess Inspector Sergeant Walter Terrell took the stand for the second time.
The Walter Terrell who was sworn in this afternoon was not the eager young man of only a few days before. Gone was the flight jacket and casual slacks, the hair half-uncombed, the designer shirt unbuttoned to the neck. For his testimony this time he wore a three-piece charcoal pinstriped suit that had to have set him back plenty – a lawyer's suit – complete with red tie and white shirt. He had cut his hair and it lay where he had put it.
Even the aggressive demeanor had been tempered. Hardy knew that if you wanted to succeed in this theater you sometimes had to grow up in a hurry, and obviously two things had happened since Terrell's last appearance as a witness in the hardball of a capital murder trial – someone had spent time coaching him, and he had wanted to learn.
At first glance it looked as though Powell had made Terrell understand something that had been foreign to him before – that a witness didn't need a macho personality out on his sleeve to be effective. If placed in a careful arrangement of the facts.
Powell, for whatever his flaws in preparing this case, continued to exude confidence – that he was winning.
It was unsettling.
"Inspector Terrell," Powell began, "since your credentials have already been established, let's begin with your arrival at the murder scene, the Witt house on Olympia Way. This was when?"
This time up Terrell didn't break out his winsome smile – all business, not trying to please anybody, just here doing his job. "I arrived at the scene at 10:43. There were already officers there and the room had been secured."
"Did you see the defendant, Jennifer Witt?"
"Yes. When I came in she was sitting on a couch in a large room off to the right of the entrance. One of the officers there pointed her out to me and I went over to speak with her."
"What was her demeanor at that time?"
"She was sitting with her feet tucked under her, her hands crossed in her lap. She was quiet."
"She was not crying?"
"No, sir."
"And she could speak coherently?"
"Yes, sir."
"Did you, Inspector Terrell, have any reason to suspect that Mrs. Witt had committed the murders at that time?"
Terrell thought for a beat. "Not really, other than that, statistically, spouses often kill each other." Terrell sat back, for the first time comfortable in the hard witness chair.
Powell probably looked genuinely puzzled to the jury. "But didn't Officer Gage tell you about Mrs. Witt's saying 'I know' when he told her about the bodies upstairs?"
"Yes, but I guess I chalked that up to shock. Plus she might have come to that conclusion while waiting for him to check the house."
This was good, but not for Jennifer. Terrell was repairing his hot-head image of the other day. He hadn't jumped all over Jennifer like a rabid dog. He had waited for the evidence to pile up. And Powell was leading him toward it, toward his certainty that Jennifer had done it. "During later interviews, did you ask Mrs. Witt who she thought might have done this?"
Now Terrell sat forward. "Well, in law enforcement we always ask the question 'cui bono? ', which means who benefits? And, of course, when I learned that Mrs. Witt would inherit something like five-million dollars, well, it got my attention. I asked if anyone else would inherit. She said no."
"Go on."
"The next thing was that she had told me her husband had no enemies, and if that were so, the motive for the murders had to be impersonal. Robbery, for example. I asked her to search the house and list anything – however small – that was missing."
Hardy had heard all this before, but it was now coming out in a believable and damning fashion. The gun never mentioned as missing by Jennifer, her belated memory of the strange swarthy man in a trenchcoat walking up the street as she walked down it.
When Powell was finished and turned the questioning over to Freeman, the defense attorney started with the same line Hardy would have taken – the only pinhole in an otherwise seamless fabric.
"Mrs. Witt told you her husband had not enemies, is that so?"
"Yes, sir."
"And in the course of your investigations, you looked into this assertion?"
"Yes, I did." Terrell was volunteering nothing, playing Freeman's game, pausing befor
e he spoke, never giving a word without thought. He met Freeman's stare with his own.
Hardy knew a little of what made Terrell tick – the inspector was daring Freeman to try and come get him. And somehow he was pulling it off without appearing belligerent. Powell had trained him well.
But something was up. Suddenly Hardy put together Powell's confidence and Terrell's attitude – the defense was walking into a trap. He raised a hand. "Excuse me, Your Honor."
Freeman, interrupted as he was trying to find his rhythm, turned around, glaring. "I'd like to request a short recess."
Villars frowned – the afternoon had been long enough without these constant interruptions. "If there are no objections." There were none. She called a fifteen minute recess.
*****
"There's something going on," Hardy said. "We're going to get sandbagged."
He and Freeman were standing nose-to-nose just inside the door to what they had taken to calling their suite. The windows were sealed shut and the heat either was working too hard or the air conditioner wasn't working hard enough. In any case, the temperature was at least ninety degrees.
"On what? I'll bring up a couple of other dudes with Terrell and sit my weary ass back down."
"I know that's what you want to do. What I'm saying is, don't do it. Terrell's got something he's dying to leak out. You hurt Powell on Alvarez and he knows it and still he's a Cheshire cat out there, and I don't think it's faked."
"Everything Powell does is faked."
"Unlike your own sincere self, right?"
Freeman let it go. "Goddamn, it 's hot as hell in here. What do you want me to do, just dismiss Terrell? Stop right here?"
"How could it hurt?"
The look Hardy got in response wasn't flattering, but he didn't care. He was convinced that they had closed to within a length of a good chance of acquittal after the testimony of Barbieto and Alvarez. After all, they were talking reasonable doubt here, not certainty, and Hardy thought they had it.
Further, even though Gage and Terrell hadn't gotten them any points, neither had they put too many on the boards for Powell. That, though, could change in an instant. One false move now could turn the momentum of the entire trial. It was a time to be conservative in the literal sense – conserve what you've already got. Don't let the other side score.
The 13th Juror dh-4 Page 32
