helping. 'This only looks like something if you're already disposed to see it,' Restoffer was saying. 'I've got nothing hard at all, nothing to connect the dots.'
'Do you know anything about this Morency woman?'
'Nothing. She's probably on ten boards – that's what these people do, isn't it? Sit on boards, keep the money in the family, take a small stipend – say, my salary – for their efforts. And the rich stay rich. Hey, listen to me. I'm four months from life by a lake in Montana in a cabin that's paid for. Get out of this zoo for good, so what am I bitching about?'
'Sounds great.'
'It will be, believe me. The first year I don't think I'll do anything but paint. I haven't painted since I was a kid. I used to love it, then I ran out of time to do it.'
'I used to make things out of wood,' Hardy said. 'No nails.'
There was a silence, then: 'Life, huh?' Restoffer said. 'Anyway, I thought I'd give you what I found, see if you get lucky.'
'Well, I appreciate it, Floyd, I really do.'
'Listen, if you get so you're closing in on this one, I'm here.'
'Got you.'
'Later.'
44
Hardy climbed the Hall of Justice steps. It had turned cold overnight and the morning sun shone bleakly, as though through a gauze, just enough to cast its long shadows.
He had never believed he would miss David Freeman, but the schlumpy, gruff, arrogant presence would have been welcome now. He entered the building, passed the metal detector and went downstairs to the cafeteria, not yet mobbed as it would be later. He ordered a cup of coffee, went to a table and opened his briefcase, taking out a fresh yellow legal pad and a black pen.
It was 7:40 and the penalty phase was to begin at 9:30.
He had wrestled with his options for an hour before talking to Floyd Restoffer, and in the end had decided that time had simply run out to pursue things on his own down in Los Angeles. If it absolutely came to that, he would, but meanwhile he had a defense to conduct – Jennifer Witt would be sentenced to death unless he had some reasonably effective argument that she should not be.
And, of course, he couldn't use his best one.
But the penalty phase of the trial gave him more leeway than Freeman had had. The guilt phase was interested in the weight of evidence, in proof, in determination of the facts. By contrast, the penalty phase explicitly contemplated – indeed mandated – the introduction of factors that might persuade a jury of the defendant's mitigating human qualities. So Hardy could bring up those things about Jennifer – her life as a wife with her husband, what a good mother she had been. He could talk about her childhood, her friends, even her pets. His problem was that over the past week, at the rate of a couple of hours with Jennifer every day, he hadn't discovered much more about her life than he'd already known, and he suspected that not much of Jennifer's life story – the part he could tell – was going to move the jury to empathy.
Larry Witt had not allowed her to make or keep any friends, and she had acquiesced. She wasn't even allowed to be involved in Matt's school life. She didn't visit her parents or her brother. There were no pets. Those few times they went out to dinner, or to one of Larry's social engagements, she played the role of an aloof beauty, the wife as a trophy.
She insisted on denying the terrible reality that she had been found guilty. Hardy hammered over and over the fact that from the jury's perspective she was a multiple murderer. This was a hard truth but it was the truth. She avoided it, as she had so many other hard truths in her life.
Finally, they did reach a compromise of sorts. Hardy could bring up what he saw as humanizing issues, in effect pleading for her life as though she were in fact guilty, so long as he left out any reference to Larry beating her. In return, Hardy must continue to bring up alternative theories for the killings; she was not letting go of her idea that this possibility – that someone else had done it – would at least plant enough doubt to keep the jury from voting the death sentence. And no matter her situation and Hardy's dose of reality, she still seemed to cling to the hope that somehow the real killer would be found and she would be entirely cleared.
So, based on the YBMG material, and in the face of David Freeman's warnings, Hardy spent half the night arranging and, he hoped, buttressing the argument that a hit man had killed Larry, and the reasons he had for doing so. To that end he had subpoenaed Ali Singh.
Trying to portray Jennifer as a model of sweetness and light proved to be somewhat more difficult. She just wasn't the girl next door and had never pretended to be. A difficult, moody child, she had grown up a difficult, moody adult – haughty, cool, secretive, self-destructive. That was too often her persona, showing rarely what was beneath it. The jury could not properly consider many of the things she had done since the arrest, but Hardy believed that one way or another they knew as much as he did, and would be unlikely to be able to forget it.
Here was what the jury was working with, Hardy noted down: After killing her husband and son, Jennifer had gone out for a jog, setting up an alibi – her stop at the ATM – that almost had sold them. Then by a clever ruse she had broken out of jail, remained at large for three months, during which she continued an affair with her psychiatrist (so much for the loving wife).
Though the judge had instructed the jury that there was insufficient evidence to convict Jennifer of murdering her first husband, Hardy doubted any member of the jury didn't think she had. They'd no doubt remember that, too, when the time came.
Yes, she was pretty. To some of the men she might even be beautiful, but even that, Hardy suspected, played against her – she seemed by her appearance of aloofness to think she was above it all, including the law. More tears would have helped, but Jennifer fought tears.
It had taken Hardy almost a whole day to hammer out the jury instructions that Villars would give after argument, just before the jury got the case.
'Ladies and gentlemen. Good morning.'
Powell stood in the at-ease position about twelve feet in front of the judge's bench, eight feet from the jury box, facing them. His voice was low, his tone relaxed – though it carried well enough. It looked as though he was going to be keeping out the theatrics, reasoning that the jury might well have had enough of them.
Another problem was that Powell's lead in the polls had jumped over the weekend – he was now leading his nearest opponent by seven points and seemed to be heading for election on the first ballot. Hardy had a feeling some members of the jury were aware of this, and if that were the case, it was more bad luck for Jennifer. Powell's authority and stature would tend to increase if the jury saw him as the Attorney General of the State of California rather than as just another working stiff prosecutor. But this, again, was something Hardy could do nothing about.
Powell continued: 'Around these United States of ours, a murder is committed about once every two hours, every hour of the day, every day of the week, every week of the year. Until only a few years ago the death penalty was a relatively common punishment for a person convicted of murder, as well as for so-called lesser crimes such as rape, and even some types of armed robbery.
'That has changed now in our so-called enlightened age and we live in a society and a state that sanctions the death penalty for only the most heinous of crimes – murders involving special circumstances, which include, as Judge Villars has told you, multiple murders, lying in wait, murder for financial gain, murder of a police officer.'
'You have found Jennifer Witt guilty of murder, and guilty of two of the special circumstances I have just referred to – murder for financial gain and multiple murder. That is no longer in dispute. In this phase of the trial, I am going to be showing you why the State of California is asking for the death penalty.'
'First, in the strictly legal sense, the laws of this state have decreed that the nature of these crimes compels
