Nancy sat quietly for an hour's worth of fifteen seconds. Finally Hardy stood and asked if a question had been asked. Powell gave it some more time, then sighed, saying he supposed not. Mrs. DiStephano could sit down.
49
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
