"I'd do the same thing 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 go 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 have 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 tough 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."
Hardy went back to the defense table and took another sip of water, gathering his thoughts. "The last point, ladies and gentlemen, concerns a crucial factor that has thus far been missing in the record of this trial – and that is the fact that because no one actually saw Jennifer kill Larry and Matt Witt, the possibility must remain that someone else could have done these deeds."
Powell stood quickly. "Your Honor, the verdict is in."
But again he was overruled. Hardy was not arguing a logical inconsistency nor, strictly, was he arguing hypothetically. He could continue, but "walk carefully, Mr. Hardy. There's a thin line here."
Acknowledging Villars' warning, Hardy turned to the jury. "I am not here to prove to you that your verdict was wrong. You worked long and hard coming to your decision and I respect your work. But the fact does remain – someone other than Jennifer conceivably could have had a reason to kill Larry Witt, and someone other than Jennifer conceivably could have done it. So as this portion of the trial proceeds, you are going to be hearing some about Larry Witt – the kind of man he was, his business dealings, some of the other matters he was involved in. I believe that a number of these considerations are persuasive and might bring you to that lingering doubt I mentioned earlier."
He paused, took a breath. "Ladies and g
entlemen, there is one last, painful thing. Mr. Powell has gone to great lengths in his opening statement-"
Powell wasn't having it. "Objection. This is not the time for rebuttal."
Villars didn't hesitate. "Sustained." She waited. Hardy almost felt she was daring him.
"All right," he said, turning to the jury, including them in his frustration out of Villars' line-of-sight. "Now I must, I must, say a word about the death of Matthew Witt." Again he paused, and it was not just for dramatic effect. He could not tolerate having the tragedy of the boy's death, however it had transpired, misrepresented to the jury. "No evidence has been introduced, nor will any be, that Jennifer Witt was an abusive mother. If there were doctors out there who could testify that Matthew Witt was the victim of any kind of abuse, believe me, they would be here as witnesses for the prosecution. There are none."
"And why is that?" Hardy turned and pointed now at his client. "Because Jennifer Witt was a remarkably good mother. No one contends or even suggests that she was not. She loved her son. She has been devastated by his death. She did not concoct any plan that – however remotely – might have put her son in danger. And that, ladies and gentlemen, is the plain truth."
Hardy glanced at Villars, waiting for Powell to object again and this time be sustained. Bit it did not come. He had kept it vague enough and, after all, this was just an introduction. Letting out a breath, he decided this was about as good as he was going to get at this stage. He thanked the jury and sat down.
*****
It was six-thirty and Hardy was sitting at the bar of the Little Shamrock, working on a Black amp; Tan, a mixture of ale and stout. Moses and Hardy (back in his full-time bartender days) took pride in how they made the drink, separating the two brews cleanly, stout on top. But the new kid, Alan, had not gotten the knack, so that the fresh drink tasted old, flat. Maybe it was just the way the day had gone, how Hardy felt.
After the full day of the trial, the emotional drain of finally getting up and beginning to work, Hardy didn't think going home with his edge on would be wise. The shift in personal mode from near-adversary to ally was not a toggle switch, and he had called Frannie explaining he need some unwind time – if she could handle it, if she wasn't too burned on the kids.
That early on a Monday, there were only five other people at the bar, two couples at tables near the dart board and a really lovely young woman up by the window talking to Alan. Hardy spun his pint slowly on the smooth wood before him. Willie Nelson was singing Paul Simon on the jukebox, about the many times he'd been mistaken, the many times confused. Hardy understood that.
The young man behind the bar brought a new attitude to the Shamrock. Moses called it the "look of the nineties" – short hair, shaved face, dress shirt and slacks. Moses said they were getting a lot more single female customers than they had had with Hardy behind the rail, to which Hardy had replied that maybe that was true, but probably they were shallower people, into the good looks thing. He – Hardy – was into substance, character, depth, real stuff. Moses said the real stuff was all right, but it didn't sell as much booze. Besides, Moses said, since Susan, he'd been into the good-looks thing himself. Times changed.
The woman by the window said something and Alan laughed. Swirling, checking on Hardy's progress with his drink, he was smiling as though no one had ever lied to him. Maybe that was it, Hardy thought – I'm in a business where most everybody lies. It's expected.
He took a last sip for politeness sake, pushed a few bills into the gutter, raised a hand saying good-bye. A stranger in his own bar.
*****
It was just getting to dusk, and there was one light on in the DiStephano house, in the front left window. No cars in the drive.
Hardy parked down a half-block. He put the folded-up subpoena form in his shirt pocket.
Going up the walkway, heart pounding, he wondered how Frannie would feel about this segment of his unwind time.
He walked a few more steps onto the lawn. Through the lighted window he saw Nancy moving about in the kitchen. On the porch, he stopped to listen. There was no conversation. If Phil was home he would bull his way through, or try.
He rang the doorbell.
The overhead light flicked on. She stood inside the screen. "Hello," she said. She looked around behind him, up and down the street.
"Phil isn't home?"
Shaking her head no, she opened the screen door. "He's on a call." Again, Hardy was struck by how young she looked – Jennifer had gotten her good bones from her mother. He thought those bones had played a big role in getting their men – perhaps it wasn't the blessing it was cracked up to be.
"I wanted to come and ask you if you'd like to talk about your daughter. On the witness stand."
"Talk about Jennifer? What do you want me to say?"
"I want you to talk about how much you love her."
Nancy swallowed, her eyes wide. "I do love her," she said.
"I know you do. I want you to tell that to the jury."
"Why?"
"Because it might help save her life. Because it's something they can see, something human."
Her eyes became hooded, haunted. Jennifer got that way often enough, too; Hardy thought it was whenever either of them thought they were about to do something that would get them hit.
He pressed the point. "I need you, Nancy. Jennifer needs you. The DA is pulling people out of the woodwork and they're painting a very bad picture of Jennifer."
"I know, I watch TV." She scanned the street again, then stood silent volunteering nothing.
"What is it?"
"It's him." Hardy had met women before who referred to the current man in their lives, always, without preamble, as "him." And it always chilled him.
"Phil would want you to save his daughter's life, Nancy. Don't tell me he wouldn't want that."
"This whole thing…" she began, then stopped again. "He hates it. He hates that everybody knows it's his daughter on trial."
"He's worried about how that affects him?"
"He's not just worried, he's furious. He said he wishes we never had her. He won't even let me talk about it, about her."
"Nancy, how's he going to feel if they execute her? How are you going to feel?"
The plea in her eyes was clear – don't ask me such a question. She loved her daughter and was scared to death of her husband. If he had to bet on it, she hoped more than anything at this moment that he would just go away.
But he didn't drive out there just to go away. He took the paper from his breast pocket. "This is a subpoena for you to appear, Nancy. I need you to be there. I need somebody to say that Jennifer loved her son, that she herself has something to offer, that she is at least worth saving. She the jury that somebody cares."
Nancy held the paper close to her.
"Nancy, how old are you?" Hardy asked suddenly.
She tried to smile but it came out broken. "Forty-eight," she said.
"It's not too late," he said.
She clutched the subpoena form against her, in a fist held tight against her stomach. She sighed, almost shuddering. Any trace of even a broken down smile was gone. "Yes, I'm afraid it is," she said.
*****
In the middle of the night, the telephone rang. It was Freeman. "You heard yet? Anybody call you?"
Hardy blinked tying to focus the clock. Four-thirty.
"No, David, nobody's called me."
"Well, they called me. Jennifer's mother just tried to kill her old man."
45
They were both at Shriner's Hospital – Phil under the knife in emergency surgery, Nancy in a guarded, private room. Hardy was down there before six, before the sun was up, before any other lawyers or the media.
"She's going to be all right. Him I don't know."
The inspector, Sean Manion, had had a long night, but he worked out of Park Station; he had known Hardy from the Shamrock and they got along. They were standing in the hallway outside Nancy's room now. She had been sed
ated and was not going to be giving interviews to anybody for a while.
"What happened?"
Manion was strung tight. He was shorter than Hardy by half a head, with a pock-marked face, a reconstructed cleft pallet, a monk's tonsured hairline. Perpetually hunched, hands in his pockets, chewing gum, he talked in a rapid staccato. "Guy beat her once too often, I guess. She grabbed a knife and stuck him. Four times, I think. No, five."
"How bad?"
"Three on the arms. Standard slash, but a couple of belly whacks. Could have knicked his heart; they weren't sure last I checked. Guy lost a ton of blood. She called us, you know. After."
"You gonna charge her?"
Manion chomped his gum. "I don't know. Ask the DA. I doubt it. With what?"
"Attempted murder?"
Manion snorted. "Nah, shit, this was self-defense. You ought to see her. Son of a bitch ought to die. If he lives, anybody gets charged with anything, ought to be him."
"Sean, did you call David Freeman on this?"
"Who?"
"Never mind. Maybe she did before you got there." Hardy motioned back toward the room. "She's out, though, huh?"
Manion nodded. "Dreamland. Check her around noon."
"Can't," Hardy said. "I'm in trial."
"Lucky you." The inspector spread his hands. "Well, there you go. She'll still be here tonight. She's not going anywhere, I'll tell you that. Not today."
"That bad?"
Manion bobbed his head. "Pretty bad. But hey, she's alive. It could be worse."
*****
Hardy knew he had caused it. If he hadn't gotten the idea in the first place, if he hadn't gone down with the subpoena, if he hadn't tried to talk Nancy into testifying… Then she and Phil had gotten into it and now they were both in the hospital.
From his lack of a night's sleep, he should have been exhausted, but when he entered the small interrogation room on the seventh floor at a little after eight, the adrenalin rush hadn't let up. He felt like he'd had a half-gallon of espresso.
The 13th Juror dh-4 Page 41
