Finally, after lunch, the defendant took the stand.
She wore a taupe-colored suit with a bright multi-colored scarf. Hardy wasn't sure how he felt about the outfit – it gave out conflicting messages. On the one hand, it cut Jennifer away even further from the common thread shared by the rest of the people on the jury, which was not good. She needed their empathy, not their envy. But he had to admit, and statistics supported it, that there was a subtle dynamic at work in death-penalty cases. A natural reaction, he guessed, although not a particularly noble one. A jury would only be likely to vote for the death penalty if it had become convinced that the defendant was, in some tangible way, a kind of monster, a deformity cut off from the bonds of humanity. To avoid this impression – shallow as it might be – Jennifer's clothes would help. Looking as she did, dressed as she was, she was very much a human presence, not a non-person, certainly not a monster. More than that, there was something in her physical beauty and carriage that was generally highly valued in America. Hardy hoped the jury – especially the men – would not be inclined to vote to turn this suffering beauty into a corpse.
Of course, his fear in calling her to the stand was that by opening her mouth she would break the spell cast by her appearance. And Hardy well knew that from behind that appearance might erupt someone to turn off even the most predisposed in her favor.
They had discussed the format for this testimony, and had decided that Jennifer should say what she had to in her most modulated voice. She would be her best self. The risk would come with Powell's cross-examination. Meanwhile, Hardy tread lightly.
"Jennifer, you're up here today to argue for your very life. Is there anything you would like the jury, and the judge, to know?"
She turned to them. "I know that you have found the evidence was enough to convict me." Swallowing, nervous, she looked at Hardy, who nodded. "I'm really not here to make an argument for my life, as Mr. Hardy says. I'm here to tell you that I did not do any of this. I did not kill my husband. I certainly did not kill my son." She swallowed again. "I admit I may not have been the greatest mom in the world, but I loved Matt…" Again, she stopped, bit down on her lower lip. Gathering herself, she forced a weak smile. "I guess that's all."
Powell was scribbling furiously – about what?
Hardy had intended to question her some about Larry, but this statement was so clean that he was tempted to stop right there. The jury now had heard her deny the killings with her own voice – it just might be all he needed, or at least the best he was going to get.
But on the other side, the jury might feel it was too easy to fake something so short. He felt he had to bring her out a little more – as Freeman had said, life was a risk.
"Do you want to tell us about the morning of December 28?"
Powell stood up. "Your Honor, this testimony belonged in the guilt phase of this trial."
Hardy had to get in a word before Villars ruled. "This is Jennifer Witt's story and the jury deserves to hear it, Your Honor."
The judge frowned as she always did when counsel went at each other, then she agreed with Hardy. Turning to Jennifer, she said, "Tell us about that morning, Mrs. Witt."
Jennifer nodded. "I got up early because we'd had dinner late and I hadn't done the dishes from the night before. And Larry was going to be home all day, all week really, so I wanted to be sure the house was perfect. I wanted to go jogging later, which I usually did, so I just put on my running clothes and went downstairs.
"It got pretty late, maybe eight-thirty, but it was Larry's vacation and I thought he should be able to sleep in if he wanted. Then finally he came down. Matt was still sleeping, he was a good sleeper."
Nice touch, Hardy thought shamelessly.
"Anyway, Larry reads the paper in the morning with his breakfast. It's just something he always does…" She paused, collecting herself. "I mean he always did. But this morning he came down angry."
"Over what?" Hardy said.
She swallowed hard. "I wasn't dressed right."
"Didn't you say you were in your running clothes?"
She nodded. "But that wasn't going to be for an hour or so, you see? I guess I still looked like I just rolled out of bed. I mean my hair and no make-up."
"But hadn't you just been up for a while cleaning house, doing the dishes?"
Jennifer might not wasn’t to talk about Larry beating her, but this was good stuff for her. Saint Larry was taking a few hits and Hardy was trying to keep Jennifer swinging. "Well, yes, but… he just didn't like it."
"Did he yell at you?"
"No. I could just tell he was upset. You know?"
"I think so, Jennifer." Hardy included the jury. "And then what happened?"
"Well, I got his coffee and then I tried to rub his shoulders, which he liked when he was tense about something, but he shrugged me off."
"He shrugged you off? You mean he physically moved you away?" Powell seemed to be willing to let him lead the witness and Hardy would use a leash if he had to.
But Jennifer wouldn't go along. "No. You know, he just didn't want me to look this way. So I told him I'd go upstairs to change if he wanted me to…"
"Even though you were still going running in an hour?"
She nodded. "If he wanted. It wasn't a big deal to me. But then he told me not to bother, he said he'd been awake for an hour upstairs, going over our bills. He was worried about money. Christmas, you know, that sort of thing?"
"And what happened then?"
"It got to be a family budget argument." Jennifer was facing the jury. "You know, everybody has them."
"All right, and then what?"
"Then Matt came down, rubbing his eyes, like he did when he woke up… I didn't like to have Matt hear us arguing and yelling so I stopped and went into the kitchen and made him some French toast, which was his favorite. Then I went upstairs to make the beds. I thought maybe it would all blow over."
"And did it blow over?"
"No… When I came down Larry started in again on how I looked. He thought I'd gone upstairs to change into something decent. I told him I was going running now, but he was still mad about the other… about everything. So we had more words and Matt was crying. I thought I could make it stop if I left, so I did."
"You went out running?"
"Yes."
"And what time did you leave the house?"
"I don't know. I walked down a couple of blocks, which is what I always do to warm up, then I started running."
She told it well… the stop at the bank, her return to the house, the inventory where she didn't list the gun as missing because she hadn't gone back into the bedroom. Hardy was coming to the opinion that in his fear over Jennifer's abrasive personality, Freeman had badly erred in not putting her on the stand. She had a consistent story to tell and she told it well, her voice gaining in confidence as she went on until her direct testimony came to an end just before they broke for lunch.
If only she could stand up as well to Powell's cross-examination.
"I'd like to start by asking you to clarify something for me. Is that all right?"
During lunch in the "suite," Hardy had let her savor her partial victory for a few moments, and then thought he'd best begin to prepare her for Powell's expected onslaught. Perhaps it would work – she was facing Powell calmly now, her eyes clear as she nodded.
"You've said, and I quote: 'I didn't kill my husband. I certainly did not kill my son.' Do you mean that you're not as certain that you didn't kill Larry?"
This was a get-your-goat question and as such, Hardy thought, it was good strategy. But he wasn't about to let Powell get away with it. "Argumentative, Your Honor. What's the substance of that question?"
Villars agreed. Jennifer did not have to answer, but Hardy could see that the question had rattled her, already chipped at her reserve. He caught her eye and half-lifted a palm – keep cool, Jennifer, don't let it get to you.
Powell smiled at the defendant and started again. "If you don't mind, Mrs. Witt, I'd like to clear up one part of your story I still don't understand. You've testified that when you came back downstairs after making the beds and so on, that you and your husband started fighting again."
"Larry started yelling again, yes."
"And Matt started crying?"
"Yes."
"And as a mother, your response to your son's crying was to leave the house?"
"I tried to stop it by leaving."
"Yes, I see that, but how did you try to comfort your son? Did you hug him? Tell him you loved him?"
"No, not then. I thought when the fight between Larry and me stopped, he'd stop-"
"And that was the point, wasn't it? To get him to stop?"
"Well, no. I mean, he would."
"So you just walked out on him?"
Hardy stood up. "Asked and answered, Your Honor." Disastrously.
Powell withdrew the question before Hardy could be sustained. He stepped closer to the witness box. "All right, Mrs. Witt. On another subject – you've mentioned that you and your husband had this fight about money – family budgets, the kind we all have, is that right?"
"Yes."
"And your husband, Dr. Witt… was looking over your family budget before coming down to breakfast?"
"Yes."
Powell had something, Hardy realized. Relaxed, taking his time, he went back to the prosecution table and took a document from Morehouse. He walked back to the center of the courtroom. "Your Honor, I have here a copy of a statement of an account of Mrs. Witt's from Pioneer's Bank. I'd like to introduce it into evidence as People's 14." Jennifer visibly tensed.
Hardy's stomach tightened. As Powell came over to his table to show him the bank statement, he decided to buy her some time. "Your Honor, sidebar?"
The judge, scowling, motioned Powell and Hardy forward. "What is it now, Mr. Hardy?"
"Your Honor, this document wasn't on the People's evidence list." During discovery, counsel for both sides were supposed to present the other side with complete lists of witnesses they intended to call, and physical evidence they intended to present. Neither witnesses nor evidence had to be used, but if they were not listed beforehand they normally could not be used. In theory, at least, the courtroom was not a place to spring surprises – in practice, attorneys loved it when it worked out that way. "I object to its introduction now," Hardy said.
"Counsel is mistaken, Your Honor."
Powell was now holding up the thick sheaf. "These are the papers, a complete copy of which we presented to defense counsel on" – he paused, checking another page – "August 1."
Hardy and Freeman had, of course, received this package. It was undoubtedly somewhere in Hardy's office among the seven book boxes filled with statements, interviews, police reports. Because Powell hadn't seen fit to introduce it in the guilt phase, Hardy had allowed himself the faint hope that Powell hadn't noticed it in the mass of documents. No such luck.
The financial package Powell now held was three-and-a-half inches thick and contained nearly five-hundred pages of the Witts' past tax statements, insurance forms, bank accounts, IRAs, stock records, copies of canceled checks, receipts for most of their household items. None of it was in any order and there was no index – a ton of camouflage for the one thing that was going to hurt Jennifer – the one page statement revealing the existence of her secret account. Powell was flipping through the pages upon pages of photocopied copies of canceled checks until he found it, hidden among them. "Here it is, Your Honor."
Villars leaned over, adjusted her reading glasses, nodded. "There it is, Mr. Hardy."
It was entered into evidence and Powell descended on Jennifer. "Now, Mr. s Witt, take a look at People's 14 here. Is this your account?"
The clear look in her eyes was gone. Panic had taken up residence there. And Hardy was not much help – he felt it himself. Jennifer nodded. "Yes, that's my account."
"Did your husband know about this account?"
Jennifer swallowed. "Yes, of course."
Hardy knew that perjury wasn't much compared to murder, but he hated to hear the lie, anyway, even though he understood why she told it.
"Mrs. Witt, would you read to the jury the address on that statement?"
Jennifer glanced at the copy she held. "P.O. Box 33449, San Francisco, California."
"A post office box? Statements from this account weren't sent to your home?"
"No."
"And why was that, Mrs. Witt?"
Wide-eyed, Jennifer turned to Hardy. "I don't know."
"You don't know! Powell's voice rose and grew deeper. "You don't know?" he repeated. "Isn't it true, Mrs. Witt, that your husband had no knowledge of this account?"
"No-"
"… land that he had discovered that something was wrong with your family budget. What he'd discovered was that you had been lying to him about money."
"No, that's not true-"
But as Hardy knew, it was true.
And Powell wasn't finished. He backed up a step, lowered his voice again, came at her from another direction. "Mrs. Witt, have you received any money yet from your late husband's insurance?"
Thrown by the change in tack, Jennifer might have thought for a moment that Powell was easing off. She said she hadn't.
"Did you and Larry have a large savings account?"
"No, not really. I think about twenty thousand, something like that."
Powell turned to the jury. "Some people might call that large, Mrs. Witt, but I'll take your word for it."
"Then we had Matt's college fund." Jennifer, not knowing where he was going, was trying to be helpful. "That was about another twenty."
"And what about the house?"
Hardy jumped up. "Your Honor, where is this going?"
Powell turned to him, then back. "I'll tell you where it's going, Your Honor. It clearly demonstrates that these murders happened because of greed." He held up the Pioneer's Bank statement again. Wound up now, Powell turned back to Jennifer. "Mrs. Witt, this account of yours that got mailed to a post office box, how much money did it contain when you were arrested for these murders?"
Jennifer studied her hands.
"I'll tell you how much it contained if you don't remember. It's here in these statements. It's a little over three-hundred-thousand dollars, Mrs. Witt. Money you had been stealing from your husband for almost seven years. Money you embezzled from your own household!"
Jennifer lost it, voice shrill. "We never went out! Don't you understand that? He never let me do anything. You don't know what it was like, what he was like. He never even missed it-"
"But he did that morning, didn't he, Mrs. Witt? And your beloved Matt was in the way, too-"
"Objection!"
"You didn't grab the gun in the heat of the fight- you had planned the basics for some time-"
"Your Honor, objection."
"You went upstairs to get the gun-"
"Objection." Hardy's voice had gone up several octaves. Villars banged on her gavel. Powell rolled over both of them, at the top of his voice, moving closer to Jennifer.
"Now, suddenly, this became the moment when you must act. He said he was taking his money back, isn't that it?" Finally, in her face"Isn't that why you killed him?"
Exploding out of the witness chair, nearly knocking it over, Jennifer lunged at Powell, her face distorted. "No. I didn't kill him, you son of a bitch!"
"Sit down, all of you. Mr. Powell…" Villars slammed her gavel.
Jennifer, out of control, was screaming.
"Order! Order! Bailiffs!"
But even the bailiffs stood back, letting Jennifer wind down until, spent, she pulled the chair upright again and lowered herself back into it.
Powell stared at her. His shoulders sagged. "I just don't understand why you had to kill Matt," he whispered. Turning, he said he had no further questions.
It took the jury two ballots, two hours and seventeen minutes. It was, as the law prescribed it had to be, unanimous. And it was for the penalty of death.