Jennifer had not yet dressed for court. She was escorted in wearing her red jumpsuit. "So what's today's advice?" she began. She acted like she was losing hope in him.
He told her.
She had been standing in what had become her usual posture in that room, arms crossed leaning back against the door. Before Hardy was half done, she sat down, shell-shocked.
"Jennifer?"
"I'm here." Then: What does this mean?"
"I think it means you r mother was going to testify for you and she and your dad had a fight about it."
"But why would she risk that? She knows him…"
"How about because she loves you?"
Jennifer just stared at him, her mouth working in silence. She put her head down on her arms and began to sob.
*****
A very unhappy Harlan Poole was back on the witness stand. The dentist appeared to have lost some fifteen pounds in the two weeks since he had been up before. This time he was not going to be relating hearsay.
Dean Powell was zeroing in. The election was around the corner and the candidate's whole rhythm was picking up. "Dr. Poole, you have said that after Jennifer's first husband died, you decided to call things off with her. Is that correct?"
Poole, sweating almost before he had begun, agreed.
"Can you tell us what happened then between you and Jennifer?"
"We… I just kind of tried to distance myself."
"Although she worked with you every day, did she not?"
Poole nodded. "She was my receptionist."
"And yet you needed to distance yourself."
"I… we stopped being intimate."
Poole seemed to be looking in all directions at once, pulling at his collar. He mumbled it out, just into the range of the audible. "I couldn't perform… it may sound strange, but I was afraid of her-"
Hardy jumped up, objecting, but was overruled. He began to argue with Villars, saying that Poole didn't answer the question of whether or not he had stopped being intimate. Villars, pointing a finger, asked Hardy if he were hard-of-hearing – she had ruled on it. He had to stop. He risked a contempt citation but worse, he risked losing the jury's respect. The former he could handle, but the latter could doom Jennifer. He sat down.
Powell, for his part, was not about to risk a mistrial repeating why Dr. Poole had been afraid, but then, of course, he didn’t have to – the hury would remember about Ned. He didn't need it anyway, as it turned out – the direction he did take was damaging enough. "So then what happened?"
"I tried to tell Jennifer it was no good, that it just wasn't working anymore, but she, uh, she…" He looked at Jennifer again.
"Take your time," Powell said.
Poole thought about how to put it. "I finally decided I'd have to break it off with her and fire her at the same time."
There was a little rush in the courtroom. Several members of the jury sat forward. So did Hardy. Once again, he hadn't heard about this one.
"And what happened then?"
"Well, she got pretty crazy…"
"How do you mean crazy? Threatening? Violent?"
"Both." He stopped and swallowed a few times. "I don't know what to say, sir. I'm sorry."
Powell was prepared. "Did she physically attack you?"
"Yes."
"With a weapon?"
"Well, some things at the office, yes."
"Sharp things? Medical instruments?"
"Yes."
"Were you hurt?"
"She scratched me pretty badly on my arms and face." He shook his head. "She was pretty crazy."
Hardy stood up again. "Your Honor, this is the second time this witness has characterized the defendant as crazy."
Villars, deadpan, addressed the jury. "Disregard the characterization," she said. "You're sustained, Mr. Hardy." She gave him a cold smile.
Powell picked it right up. "She scratched you on your arms and face?"
Hardy instinctively rose again. "Asked and answered, Your Honor."
Powell turned back to him, to the jury, arms outstretched. Villars wasted no time.
"Let the prosecutor question this witness, Mr. Hardy. You'll get your chance. Overruled."
For the third time, the jury heard that Jennifer had scratched Poole's arms and face. Powell now asked: "You've also said that the defendant threatened you. What was the nature of that threat?"
Poole swallowed and croaked it out. "She said if I didn't take her back she'd kill me."
"She'd kill you," Powell repeated.
"Yes, sir."
"Did you think she would?"
Hardy, hating to but having to – Powell was baiting him – stood to object again, but Powell graciously smiled. "I'll withdraw the question. Your witness."
Now was when the fatigue was hurting him. If Powell had found his own rhythm, Hardy felt that he had lost his, but there was nothing to do but press on.
"Dr. Poole," he began, "this attack you suffered at the hands of Jennifer Witt – was it after you broke up with her or after you fired her?"
"Well, they were… it was pretty much the same thing."
"Okay. How long had you been intimate with Mrs. Witt before that time?"
"I think about six months."
"You don't remember exactly?"
"Not exactly, no."
This was Hardy's favorite answer from a hostile witness. He thought he'd try it again. "All right. Would you please tell us what weapons she used against you – the sharp ones you mentioned earlier?"
"Well they were office instruments."
"Yes, you said that, but which ones?"
Poole frowned. "I don't remember exactly. She was throwing a lot of them."
"Oh, she was throwing things at you? You broke up with someone you had been intimate with for six months, taking advantage of your position as her employer-"
"Objection," Powell said.
"It wasn't like that…"
Hardy's voice was rising indignantly and it wasn't an act. "… and fired her at the same time, and she threw some things at you in anger. Is that the attack you're telling us about?"
Villars rapped her gavel.
"Badgering the witness, Your Honor," Powell said.
"Sustained. Mr. Hardy. Is there a question in there?"
Hardy took a breath, turned to the jury and gave them a half-smile. "Doctor, can you tell us any instrument that Jennifer threw at you?"
"Well, yes. I mean no. But it wasn't just that. She trashed the office. She cut me."
"Let's take those one at a time. She trashed your office?"
"Completely."
"She did a lot of damage?"
"Eight thousand dollars. I had to close for a week."
"Eight thousand dollars. You must have reported that kind of loss to the polce."
Poole was silent.
"Dr. Poole, did you report this incident to the police?"
"I didn't want to-"
"I'm sorry, Doctor, but it's a yes or no question. Did you report this to the police?"
Poole swallowed again, and again. "No."
"So there's no record that it happened as you say? Yes or no?"
"No, there's probably no record."
"All right, let's go back to her cutting you. Did she cut you with one of your instruments, perhaps?"
"No. It was scratches."
"Oh." – Hardy brought in the jury again – "now it wasn't cuts, it was scratches."
"She tore at my arms and face with her nails. That's the scratches I'm talking about."
"All right, that clarifies that. And you've testified that they were pretty bad? Did you see a doctor for them?"
"No, I didn't want-"
"Thank you. Do you have any scars from this alleged attack?"
His hands went to his face, as though there was a memory there. "It's been almost ten years," he said.
"That would be a no?"
"Yes, that's a no."
"Thank you. One last question, Doctor. Let
's go on to this alleged threat. Do you remember the actual words Jennifer used?"
"No, I don’t, not exactly." He was breathing hard, and suddenly rose in the chair and actually pointed to Jennifer. "But she did say she was going to kill me."
Villars told him to control himself, to calm down.
"Did she actually try to kill you? Did she follow you around, call you on the telephone, hound you after that?"
"No. No, nothing like that. I never saw her again. At least not until I got here."
"You never saw her again. In other words, regardless of what she might have said in the heat and pain of the moment after being simultaneously jilted and fired by you, she disappeared from your life. Isn't that true?"
"Yes, that's true."
"Thank you. No further questions."
*****
Hardy might have won that round on points, but he was afraid the victory would turn out to be Pyrrhic. The jury had been reminded forcefully of Ned, and regardless of what they were legally instructed to do, he doubted that many people, if convinced of Jennifer's guilt with Larry and Matt, would not come to the conclusion that she had also killed her first husband.
Additionally, Hardy worried that he had probably alienated Villars once and for all, and no good could come of that. And though he had supplied a reasonable motive for Jennifer's outburst, he had not been able to overcome the bare fact that she had gotten physically violent with Poole. Poole might have come across as a user, a wimp and a whiner, but Jennifer's character kept slipping, too – a highly unstable person that you crossed at your serious peril. Wouldn't such a person be likely to repeat her violence on others?
*****
John Lescroart
Hardy 04 – 13th Juror, The
Powell had not relied much on photographs during the guilt phase, but as a courtesy he assigned his young assistant, Justin Morehouse, to inform Hardy as they broke for lunch that the prosecution was going to bring out the pictures in the afternoon – a member of the forensics unit for the color shots from the Witt home, the coroner Dr. Strout with the morgue shots.
It was gruesome but it made sense from the prosecutor's point of view. Powell was out to prove that the killing must have been cold and deliberate. His thrust in this phase was to emphasize the horror of Matt's death and Hardy, having seen the photos, knew that they would be tremendously effective to that end.
Justin was a strapping athletic young man in a well-tailored suit. He had been in Powell's shadow throughout the trial, taking notes, saying nothing, doing the grunt work as most young lawyers did. He had a fresh open face. Giving his message to Hardy, he seemed to be leaning over backward to avoid the appearance of the prosecutorial posturing that some start-up Assistant DAs adopted as their shield.
"This is going to be very rough on Jennifer," Hardy said. "Maybe you could pass that along to Dean."
"What will?"
"Lookiing at the pictures of her dead son."
Justin shifted uncomfortably from foot to foot as though he had to go to the bathroom. "Maybe she shouldn't have killed him, then," he said. It seemed to come out reluctantly, as though he didn't want to sound heartless but it happened to be his honest belief, no shadow of doubt in it. It was a good reminder for Hardy.
To many people in the courtroom – perhaps most Hardy believed – Jennifer was an unredeemed multiple murderer who would likely do it again with the right provocation. Even Justin Morehouse – a seemingly nice guy – wasn't losing any sleep about getting her a death sentence. In fact, though he probably wouldn't admit it, he didn't feel too badly about having her suffer a little, too, by the display of pictures.
Hardy was afraid that Justin might be a pretty good litmus for how the jury was feeling, andif that were so, Jennifer was in serious trouble. Because for all the impression that his cross-examinations were having on Morehouse, Hardy figured he might as well not have come to court.
*****
As soon as court was called to order after lunch, Hardy rose and asked if the judge would allow counsel to approach the bench.
"Your Honor," he began, and told Villars about Powell's plans for show-and-tell. "In view of the highly emotional response these photographs are likely to produce, I would like to request that you excuse Jennifer Witt from the courtroom during this testimony."
Villars pulled her half-moon reading glasses further down her nose, looking over them at Hardy. "We don't try murder cases in absentia in this country, Mr. Hardy. Your client stays."
This was the law, but strict adherence to it under these conditions smacked of gratuitous cruelty. However, he couldn't very well argue that. "She may faint, Your Honor. This will be extremely difficult for her."
Villars rearranged her glasses, then took them off altogether. "If she faints, Mr. Hardy, we'll adjourn until she's feeling better."
As it turned out – and this seemed to be the trial's trademark – it was worse than he had feared. An emotional outburst – even a negative one – might at least humanize Jennifer. But she had no reaction at all. Instead, she seemed to Hardy to go into shock, sitting through it all dry-eyed, unmoving, clutching Hardy's arm with her right hand as the succession of photographs – blown up to fit on the easel next to the witness box – showed her and the jury how her boy had looked after he had been shot.
Half the jury reacted with tears or apparent nausea. But Jennifer sat still, her hand on her attorney's arm, looking straight ahead.
Unfeeling.
*****
Dragging from fatigue, Hardy nevertheless forced himself back to Shriner's Hospital after court adjourned. There was still that bleak sunshine at the Hall, but he hit the fog just across Van Ness as he was heading west and had to slow to twenty miles per hour. In San Francisco, the fog didn't creep in on little cat's feet. It was a blitzkrieg that rolled in off the ocean at about a block every three minutes in a wide front that engulfed everything before it. The temperature dropped twenty degrees in a half a mile. The wind whipped and wipers went on. People suddenly decided to jump off the Golden Gate Bridge.
Hardy's car crept out on Lincoln, the park on his right. He briefly considered stopping at the Shamrock again for a quick one, but last night he had done that and it hadn't improved his life that he'd noticed.
*****
There was no guard outside the door to Nancy's room. These were visiting hours, and Hardy was able to get right in.
Jennifer's mother was half-upright in her bed, her eyes closed. There was a wide bandage over the bridge of her nose and, above that, her eyes were swollen orbs of black and blue.
Hardy cleared his throat and she stirred.
"It's the troublemaker," she said.
"Yeah," he agreed.
She pulled herself higher on her pillow and with some difficulty – grimacing – turned her head to face Hardy. "I told Phil I'd testify, that you'd been by."
Hardy nodded. "I figured that."
"How is he?"
Hardy had asked and been told at the nurse's station. "He's critical."
Nancy exhaled – relief? disappointment? – but then quickly sucked in a breath. Some of her ribs might be broken. "I don't know," she said. "What did I do?"
"It sounds to me like you defended yourself against someone who was hurting you very badly."
"I don't know… I'm scared."
"Of him?"
"Of what I did. Of what's going to happen now?"
"Have you talked to the police?"
She nodded, though every slight move seemed to cost her. "They've been by. I told them what happened." She sighed again. "But after that, what?"
"What do you mean?"
Half a dry laugh turned to a sharp cry of pain. "It does hurt when you laugh," she said. "I mean stabbing your husband. I think it means it's over, the marriage. Now I don't know what I'm going to do. What will happen."
Hardy didn't have an answer for her and beyond that, he thought her best bet was to figure it out on her own. In his opinion, she hadn't done b
adly so far. "What do the police say?" he asked. "Are they charging you?"
"They say not. Not yet, anyway." She looked down at her body, covered now. "They say Phil might have killed me. I think he just didn't realize…" She stopped herself. "No. I'm not going to do that. Not anymore. He knew what he was doing, he just kept coming. I asked him to stop, I begged him…"
"And that's what you told the police?"
"That's what happened," she said. She met his eyes. "So when do you want me to testify?"
"When do you get out of here?"
She shook her head defiantly. Echoes of Jennifer. "After this…" Beginning again. "You tell me when Jennifer needs me, I'll be there if I've got to crawl."
46
The prosecution rested on Wednesday afternoon. For the better part of four days Powell had called solid witnesses, remarkable for their lack of stridency, given that his goal in calling them was to persuade a jury to vote for the death penalty.
The jury had seemed to listen raptly as the psychiatrist that Powell had retained related his professional opinion, after three interviews during which Jennifer had, he said, remained uncooperative, that Jennifer was irredeemably sociopathic, unresponsive, hostile, dangerous.
Such a psychiatric opinion would not have been admissible until after Hardy had raised the subject by calling a psychiatrist of his own, but Jennifer had obliged the prosecution by assaulting their psychiatrist, thereby making his testimony admissible whether Hardy called a psychiatrist to testify or not. In their last interview she had burned him, stubbing out her cigarette on the back of his hand. ("I barely touched him. Besides, he asked me if maybe I'd killed Matt to shut him up agbout my sexually abusing him! Was that a possibility I was repressing? Was I afraid to consider that?")
Then there was Rhea Thompson, the woman from the jail who had exchanged identities with Jennifer back in the spring so that she could escape. Hardy suspected Rhea was a career snitch who had volunteered her information to cut a better deal for herself, but when she told the jury that Jennifer had said she'd "just have to kill" anyone who tried to frustrate her escape, it came across as credible.
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