the ultimate punishment. But, of course, there is an even larger issue here, and that is the nature of the murderer, a nature so devoid of mercy and feeling that she could – and did – cold-bloodedly plan and execute the murder not only of her husband, but of her own flesh and blood, her only son.'
Hardy as well as Powell knew that this was the baldest of opening statement rhetoric, but it was powerful and legally accurate. While no one had ever before in these proceedings claimed that the murder of Matthew Witt had been anything but accidental, his death by gunshot had occurred in direct consequence of and during the commission of another 'cold-blooded' crime. Any person planning the first crime would have to see, inherent in it, the possibility of the second. That, at least, was the prosecution's point. In that sense, legally, the two crimes were of the same magnitude, or sufficiently close so that Hardy decided he couldn't object and be sustained.
Powell stopped and turned his whole body toward Hardy and the defense table. Jennifer, now on Hardy's left – she had been on his right throughout the guilt phase – seemed to jut out her chin and stare straight back at Powell. Hardy had his hand over her wrist – she was shaking. He squeezed to signal her – it wouldn't help her to get involved in this visual exchange of defiance, a game of chicken.
But the references to her son Matt earlier in the trial had been few and glancing – this was an escalation, and Jennifer was taking it hard. She pulled her hand from under Hardy's.
'You're such an asshole,' she said out loud, unable to restrain herself.
The courtroom exploded.
Powell stood there open-mouthed, but no doubt pleased. Let her hang herself. Villars was calling for order, pounding her gavel. Behind Hardy, the gallery was humming. He put his arm around his client, pulling her to him and telling her to shut up right now.
Over the din Villars was trying to be heard but to little avail. Jennifer was starting to stand up, about to say something else. Hardy squeezed her arm again, trying to keep her down, to save her. 'Ow.'
Turning on him. 'You're hurting me. Let me go.' She wriggled her arm free, now facing the judge, now the jury. A fury, cornered and suddenly mute. The two bailiffs were closing in on the defense table.
Hardy leaped up, reaching for her and at the same time trying to motion to the bailiffs that they didn't need to interfere. His voice quiet, hands outstretched, he kept repeating, 'It's okay, it's all right…' Except, of course, it wasn't. She was killing herself.
Villars stood at the bench, her gavel forgotten. Behind Hardy someone said Jennifer's name and she turned. Ken Lightner had gotten to the front of the gallery and Jennifer went into his arms across the railing separating them. Protectively, his big hands caressing the top of her head, as a parent might do to comfort a child, he held her.
The bailiffs, rooted where they had stopped, waited. The crisis had lasted less than a few moments and appeared to be over. Villars sat down. Powell appeared bemused. The judge tapped her gavel and called for a recess, then ordered Hardy to see her in her chambers.
Villars' usually gray visage was almost crimson. Powell did not say a word.
'She won't do it again, Your Honor-'
'Damn right she won't do it again!' The judge spoke quietly, standing behind her desk, hands down on it, leaning on them. 'If I don't gag her and she does do it again, Mr. Hardy, I'll hold you responsible. You won't sleep at home for a week.'
Hardy, expecting a rebuke, was brought up short by Villars' tone – more personal than he'd expected. He decided it would be a good time to bring it out into the open if something was there.
'Do you have a problem with me personally, Your Honor?'
'I have a problem with your client disrupting my courtroom. That's my problem. You got a problem with that?'
'I don't think that's it,' Hardy said.
Villars straightened up. 'What?' She squinted at him. 'What did you say?'
'I said I don't think that's it.'
The judge's eyes narrowed. Her voice came out raspy, choked with anger. 'My courtroom is a goddamn model of fairness, Mr. Hardy. Justice is hard enough to come by, so I bend over backwards to go by the rules and try to be evenhanded, and I resent the hell out of anybody suggesting that I don't.'
'I haven't said it got into your courtroom, Your Honor. But I noticed you fined David Freeman for contempt and now you're threatening me with the same thing or time in jail.'
'I'd do the same thing to Mr. Powell, don't flatter yourself.' She glanced at the prosecutor, who was doing his wallpaper imitation. 'Nobody gets to yell obscenities in my courtroom. Nobody, Freeman go out of line, as he does often. It's not a personal thing with me, as you seem to think. The main reason I'm not going to gag your client is that it would further prejudice the jury against her. Beyond what she's done all on her own. Nevertheless, you have guaranteed her behavior and if she goes over the edge again I'll take appropriate steps. Against her and against you. Clear?'
'Perfectly.'
She continued to glare at him.
'Your Honor,' he added.
Powell's statement took another hour, taking them to lunch. As he went on, Jennifer kept a grip on Hardy's arm, sometimes squeezing hard enough so it felt like she was cutting into his skin through his coat sleeve and shirt.
The thrust of Powell's new argument 'in aggravation' was that implicit in Jennifer's planning to kill her husband for the insurance was the realization that it might be necessary to kill her son too! That it wasn't a 'mistake.' The boy hadn't just gotten in the way. She knew he would have to be there and she knew she might kill him, might have to.
Hardy thought Jennifer might leap out of her chair and attack Powell, and he almost felt the same. Powell was really going all out.
'Who will speak for the victim,' Powell had concluded. 'If a person who has planned to kill a child has not forfeited her right to live, then what, as a society, have we become? What greater violation of trust can there be? And what punishment, other than the ultimate, can begin to balance the scales?'
Miraculously, Jennifer had somehow borne it quietly. Tears, quickly and angrily wiped away, had begun on several occasions, but by the time he had finished she seemed composed.
'Cut that bastard's balls off,' she said to Hardy as Powell was walking back to his table. He prayed that none of the jury had heard her.
'You've heard Mr. Powell characterize Jennifer Witt as a person who, by the very nature of her crimes, has forfeited her right to live. And if, in fact, she has committed these crimes, I might agree with him.'
Without standing, Powell raised a hand. 'Objection, Your Honor. The defendant's guilt has been established.'
'I've acknowledged that, Your Honor.' Hardy hoped he had, enough. He thought his only chance – and it was slim – of getting any other theory of the murders admitted was to be crystal clear on what the jury had already determined. He wasn't trying to undermine them – merely give them alternatives to consider.
Villars gave it a moment's thought. 'Just so that's clear. Go on,' she said to Hardy. It was enigmatic enough – Powell took it as though he'd been overruled and Hardy would take anything he could get.
He inclined his head to the judge, then went back to the jury. 'The evidence in the first part of this trial persuaded you that Jennifer was guilty beyond a reasonable doubt. But now you are being asked to pass judgment on this woman's life, and there is a different standard – a mistake here that leads to her execution cannot be rectified. If new, exonerating or at least mitigating evidence appears sometime in the future it would be too
