"Are you coming to bed? Isn't tomorrow it?"
"In a minute."
"Dismas." Her eyes were soft, worried. She crossed over to him and put a hand on his shoulder. "Hon, it's eleven o'clock."
Hardy sat behind the manual typewriter at the kitchen table, his forehead in his hands, sick with exhaustion, his brain a buzzsaw. He could not stop thinking. He had been writing for three hours. First, touching up Lightner's carefully worded affidavit. Then he had reviewed his motion under California Penal Code Section 190.4(e) to modify the sentence down to life without parole, which was within the judge's absolute discretion.
The second brief was trickier because he knew he could not hope to prevail unless he had legitimate grounds to demand a new trial. To this end he had two arguments: The first one was that the packaging of the Ned Hollis murder count with those of Larry and Matt had fatally prejudiced the jury as a matter of law.
True, both Freeman and Jennifer had personally waived this issue on the record, but that could be dealt with. Hardy argued that no competent lawyer could have ever declined a mistrial under those circumstances, and that Jennifer's acquiescence was the result of incompetent advice.
(He knew Freeman wouldn't bat an eye at such a tactic, and in fact would have pointed it out to him if Hardy hadn't thought of it himself. The idea was to keep your client alive, not to stroke egos.)
This was a reasonable point, although – again – Villars had already ruled on it and was unlikely to change her mind.
His second argument was his last best hope – evidence on Jennifer as a battered wife had been suppressed… and Hardy knew that here, legally, things got shaky because who, after all, suppressed the evidence but Jennifer herself? He would need to try to explain why.
He was trying to bring up an argument for life in prison rather than death, under guidelines outlined in the penal code. The argument, technically, at this point could only be used in mitigation, not in overturning the guilty verdict. It was probably inadmissible under the other section as grounds for a new trial.
If he dared hope for a new trial, then Villars would have to make the connection, and the leap. And she would have to go out on a judicial limb to do it. He had no idea if she would.
But he had no choice – his eggs had to go into this basket – he had to rely on Villars being interested in justice, in the truth, as she thought she was. She had told him she agonized over the death penalty, that the responsibility staggered her. But even so, he would be asking her to reverse herself on rulings she had already made during the trials. If she wavered at all here, Powell would scream. And Powell was going to be the state's Attorney General. He would not be a good enemy for Villars to acquire just now…
Part of Hardy knew that he was kidding himself. He knew that, in practice, reversals at this stage didn't happen. The final administrative motions might be dressed up as the defendant's last stand, but their true intent was to give the judge a chance to save herself from the stigma or reversible error. Only on paper might this last hurdle have an effect on fairer application of the death penalty – in practice, historically, it rarely made any difference.
After he had gone over his motions, he spent the rest of the night triple-checking the evidence folders and reviewing the interviews from the beginning. His notes on Tom DiStephano. What the physicians had told him about Jennifer's "accidents", her bruises. Freeman's affidavit about Jennifer's forbidding the battered-wife defense. The abortions. The dentist Harlan Poole's first testimony.
And thank God he had spoken up back then, insisted it go on the record.
He thought that Villars would give him an opportunity – he would probably be allowed to start. But his leeway would be severely constrained – if it wasn't on the record she wasn't going to let him bring anything up for the first time tomorrow, that was for sure.
Frannie kissed the top of his head and went to the bedroom. He noticed the light going off. She had wisely given up on him for tonight.
He stood up and grabbed the telephone, pulling it around the corner into the work area off the kitchen. He closed the connecting door behind him.
A phone rang five times before a weary voice answered.
"Nancy, I'm sorry to wake you up, but there's one last thing I need to know."
54
He was at the Hall of Justice by seven-thirty. Even at that time reporters were beginning to swarm. This was judgment day, and it attracted them like clover drew bees. There were three minicams parked outside on Bryant and a couple of knots of news professionals sipped coffee from Styrofoam and ate Danish.
As Hardy approached the Hall, one of the stringers recognized him and trotted over, asking for a statement. Hardy stopped, his insides churning. He wanted to avoid all of this. It might jinx him. "What do you want to say? It hasn't happened yet. The verdict isn't verified." Chew on that, he thought.
Others followed:
"Do you have any new evidence?"
"What do you think of Dean Powell as Attorney General?"
Hardy had to laugh. "Let's say I'd rather have him in Sacramento than in my courtroom."
"Do you think Jennifer Witt will be executed?"
This sobered them all. This was reality. Hardy didn't want to prejudice things at this point. Villars had warned them all about talking to the media, and it would be unconscionable if he made a convincing case this morning in court only to have Villars see him posturing on television, like Powell or Freeman, while she was considering her decision.
He started moving again. He was sorry, he couldn't comment. Through the press he spotted David Freeman as his colleague turned from 7^th onto Bryant. It should have been a surprising relief – an ally to talk to – but he had lost his stomach for Freeman, too. Still, it was good of the old man to come down, put on a show of solidarity, talk to the media if he got the chance, and Hardy would see to it that he did. "Here comes David Freeman," he said, pointing.
The swarm moved to the next field of clover and Hardy escaped up the wide and grimy steps into the lobby, past the metal detector, to an empty elevator, down to the evidence lockers, finally taking refuge in a deserted jury-selection room on the third floor.
It was power-suit day. Both attorneys were dressed identically – dark charcoal suits, white shirts, red ties. Hardy's tie featured a nearly invisible pattern of tiny blue diamonds. Wild flamboyance.
They had gathered in the courtroom. Coming up the aisle, Hardy exchanged greetings with Freeman and Lightner, who were sitting next to one another. He handed Lightner the affidavit he had prepared for him and waited, making small talk with Freeman, until the psychiatrist had read it, scratched corrections in a few places and signed it.
Hardy nodded at Powell, who was leaning over his table, alone this morning. His assistant, Morehouse, didn't need to be here, he must have figured. This wasn't going to take long.
Now Jennifer came through the doors. She had dressed simply – dark flat shoes and a blue skirt, a white blouse with a small collar. No makeup. No jewelry. As the bailiff left her, she turned around and looked at the gallery, raising a hand. Hardy saw Lightner nod. Jennifer's face brightened slightly. "My mom's here," she said. "And Tom."
It was true. Nancy had just come in. Her son held her arm. Last night she had told him they had the funeral for Phil over the weekend. She hadn't been able to get back in to visit Jennifer, but Tom and she had reconnected. He was her good boy again. She was getting her children back. What a place to do it, Hardy thought.