too uppity, inserting too much of their personalities or beliefs into trials designed to be objective. If a judge made things too tough for the prosecution, for example, the DA's office could decide to challenge that person 'out of the building,' and a few judges over the years had found their careers ended when they had been too free with mandating from the bench some uniquely San Francisco notions of fair play.
Legally, in theory, judges had tremendous responsibility and leeway – even in a capital case, months of a prosecutor's hard work and a jury's long-contemplated decision could be overridden by any judge who decided – for almost any defensible reason – that justice was not being done. But it was also true that any judge who exercised that privilege too often might be off the bench.
Hardy had wanted to challenge Villars. In spite of her gender, she had acquired the reputation of being especially hard on women. Throughout her career she had, it seemed, leaned over backward to avoid giving the slightest appearance of favoritism to female attorneys, staff, defendants. A few years earlier she had been in the vanguard of a successful effort to dump the Chief Justice of the California Supreme Court – a woman – because of her 'soft stand' on the death penalty.
Villars was nobody's pussycat, all right, but Freeman had been adamant. He wanted her. He'd been delighted with the choice. He could win with her.
Why? Because Freeman believed that Villars was, in fact, absolutely impartial, and very few other judges were. It wasn't that Villars was so tough on women – it was that she treated them exactly like she treated men. And in San Francisco, filled with vocal minority groups of every stripe, Judge Villars played it by the book. She thought men and women were equal before the law in every way. That was how she treated people and it was how she judged them – men, women, whites, blacks, Hispanics, gays, everybody.
So Freeman was confident that, with Villars on the bench, he stood the best chance of winning the guilty-or- innocent phase and wasn't inclined to challenge. The down side, of course, was that, if Freeman lost, Villars would be a very unsympathetic choice for judge in the penalty phase.
For the eighth time in five weeks, eighty people filed into the courtroom. The clerk read off twelve names and those people came out of the gallery and filed into the jury box. All eighty swore to answer truthfully any question pertaining to their qualifications to serve as jurors.
Judge Villars began: Jennifer Lee Witt has been charged with three counts of murder in the first degree and special circumstances in an indictment returned by the grand jury for the State of California.' She continued, asking the standard battery of initial questions: Did anyone on the panel know the defendant? The victim? How about the attorneys representing them? Had anyone been a victim of a violent crime? Did anyone have a policeman as a relative? A lawyer? A judge? Did anyone consider themselves familiar with the case from reports they'd seen on television or read in the newspapers? Had any of them been arrested? Hands went up in answer to each question, and the lawyers took notes.
And so it went, Jennifer leaning close to Freeman, occasionally turning to Hardy with a question or comment. They were making notes on their peremptory challenges, deciding who they would dismiss, although there wasn't much to go on.
Jury selection, even in the old days of voir dire, was, of course, no exact science. Now under the new rules it was close to a crap shoot. Did Juror Number 5 look like she was sympathetic to Jennifer? Would the young stud, Number 11, want to give Jennifer a break because she was so attractive, or would he identify with Larry Witt, a hard-working guy who got stuck with the wrong woman? How about the Plain Jane who was Number 9? Would she be jealous of Jennifer's looks, or would she perhaps see her as a misguided sister who had been maligned and unfairly accused?
None of the first twelve survived the initial questioning. Twelve more were called. By September 27 there were ninety-two people eligible to serve as jurors. All the others had been excused for 'good cause,' hardship or bias disclosed during the initial questioning. Only now did the lawyers use their peremptory challenges. Powell challenged eleven times. Freeman used all twenty of his. They picked six alternates.
28
The six weeks of jury selection had passed for Hardy in a kind of haze. San Francisco had its allotted two weeks of warmth in early September, and every workday Hardy, Freeman and Jennifer had sat at their table, Powell and his young assistant Morehouse over to their right, going over the same critical routine again and again.
It was grueling, detailed work that was emotionally and physically draining. Hardy was needed in court. Everything he might otherwise actively pursue – the 'other dudes,' for instance – had to get put on hold. Every night, after leaving the Hall of Justice, Hardy and Freeman would discuss prospective jurors and strategies until they began to babble, then they'd do it again the next day.
At home, Frannie held on. Her husband came home late, left early, was distracted when he was there. They went away on two of the weekends – once without the kids to a cabin in the pines around Lake Tahoe. They decided they would get through this and have a real life again someday.
Now it was Monday, October 4, the players were assembled, the gallery was full, and Dean Powell stood at last, ready to begin. Hardy thought that the contrast between him and David Freeman couldn't be greater. Powell radiated authority and personality. He wore a well-tailored dark suit with a blue tie – no need to emphasize the power with red or with pinstripes. His face, chiseled, strong and bronzed, wore an expression of amiable concern. Occasionally he would run his hand through the mane of white hair, the only combing it needed.
In the middle of the courtroom he turned to face the jury that had been empaneled over the past weeks. 'Your Honor, Mr. Freeman, Mr. Hardy, ladies and gentlemen of the jury. I want to thank you all for giving up your valuable time for this most important of civic duties. All of us here' – Powell included the defense table with a sweeping gesture – 'are grateful.'
Freeman and Hardy exchanged glances. They both knew the defense would be within their rights to object to this little massaging of the jury by the prosecuting attorney. Such a welcome was really the judge's prerogative, but many attorneys on both sides often tried to show what nice people they really were underneath the lawyer costume. Freeman wasn't about to object – the jury would find it mean-spirited.
Most judges let the welcome party go on a bit. Villars did not. Her gavel came down with a crack. 'Mr. Powell, I've already welcomed the jury and thanked them for their time. This is your opening statement. Let's hear it.'
Hardy kept a straight face. Freeman brought a hand up, perhaps to cover a smile.
Powell bowed slightly toward the bench. 'Of course. Sorry, Your Honor.'
He turned back to the jury. There were four men and eight women, five blacks, four whites, three female Hispanics. One retired doctor. Three housewives. Two unemployed. Four secretaries and an office manager. A parimutuel clerk. Perhaps two gay men. You could break it down any number of ways and it still came down to a guessing game. No one doubted that Villars had done a competent and quick job of it, and no one had much of a clue what any of these people were like except that they all professed to believe in the death penalty if warranted.
Powell smiled the low-wattage version. 'Judge Villars has asked me to proceed with my opening statement, and that's what I'm going to do.' He nodded, making a little eye contact here and there. 'What is an opening statement? Well, it's really quite simple. I'm going to talk a little about the defendant in this case, Jennifer Lee Witt, and the three people she killed – two husbands and'… here Powell stopped for effect… 'and her young son.'
Another pause. 'The roots of this case go back a long way, all the way to 1984. The People of the State of California believe and will prove to you, beyond any reasonable doubt, that Jennifer Witt, on or about the 17^th of September of that year, injected her husband at the time, Edward Teller Hollis, with a lethal dose of atropine, which is a derivative of jimson weed, more commonly known as deadly nightshade.'
Powell wasn't using theatrics, wasn't playing the personality game he did so well. Perhaps he had taken the early cue from Villars, but his version of events was beginning to come out free of gimmickry, straightforward and plausible.
