The bailiff announced that the Superior Court of the State of California, City and County of San Francisco, was now in session, Judge Joan Villars presiding.
The judge sat at the bench, her familiar gray helmet of hair perfectly in place over the perennially stern visage. She wore her reading glasses. The court reporter, Adrienne, had her machine set up and was waiting.
"All right," the judge began, adjusting her robes. "Good morning. Mr. Powell, do you have a statement?"
"No, Your Honor. The jury has spoken loud and clear on this. Submitted by the prosecution." He looked at his watch. He obviously did not expect this to take long. He sat back in his chair.
"Mr. Hardy?"
Hardy stood and handed his papers to the judge. "Your Honor, I have two motions. Under Sections 1179-1181 of the Penal Code of the State of California I am presenting to the court a motion to grant a new trial. Concurrently, under Section 190.4(e) I have prepared a motion for the court to mitigate Mrs. Witt's sentence to life in prison without the possibility of parole."
Villars nodded. This was expected. "Have you new evidence to present at this time in support of these motions?"
"Yes, Your Honor, I do."
Powell straightened up and looked across at him.
He continued. "I have two affidavits, Your Honor. If I may." He approached the bench again and handed them to the judge, who took a long moment looking them over. Pulling her glasses forward and peering over them, she looked down at Hardy. Then: "Mr. Powell." Her little finger ordered him to approach. When he got next to Hardy she stood. "Chambers," she said. Then, to the room at large: "Court will recess for ten minutes."
Villars had moved ahead of them and seated herself behind her desk. Hardy and Powell had gone for their chairs and pulled them forward. She sat glaring into space while Powell read the affidavits. Finishing, he placed them on the desk in front of her. "I'm not going to accept either of your arguments on your motion for a new trial, Mr. Hardy," Villars said. "I've ruled on these issues repeatedly during this trial, and I'm certain the appeals court is going to uphold me."
Slowly, Hardy let out a breath, preparing himself for the worst. Next to him, he could sense Powell's excitement, his elation. Villars held the papers open before her, her eyes scanning them again, frowning, perhaps, Hardy hoped, searching for something else she had overlooked. Finally, she asked, "Lightner is the psychiatrist she was sleeping with?"
Was this an opening? Hardy jumped in. "That was never established, Your Honor."
Powell came up halfway out of his chair. "What do you mean it was never established? Your Honor, these affidavits should have been presented days ago so we could look into these matters…"
"Mr. Powell, please. I'm asking the questions here. Mr. Hardy?"
"The affidavit speaks for itself, Your Honor. Dr. Lightner says he has previously undisclosed information regarding Jennifer's situation on the morning of the murders. Her husband was beating her. If she killed him, it was to save her own life, right then, that morning. There was no premeditation-"
"Your Honor, please!" Powell wasn't having this, not at the eleventh hour.
"Self-defense is a justification for homicide, Mr. Hardy. If that was your defense, you and Mr. Freeman had every opportunity to bring it up earlier."
Hardy had known this was coming and was prepared. "That point is addressed in the other affidavit, Your Honor. David Freeman's. I did not have the opportunity. Mr. Freeman did. He chose not to do it. I was not Mrs. Witt's attorney in the guilt phase. My client shouldn't be penalized now because of Mr. Freeman's strategy." Hardy knew this was a reach… he and Freeman had been acting as a team, and Villars knew it as well as Powell. Still, technically at least, he wasn't wrong.
Villars sat, her face a mask.
"Your Honor," Powell said, "this battered woman question had never been introduced. It's not part of the record."
Hardy started to answer but Villars stopped him. "I know, Mr. Hardy, you don't have to remind me." She gestured with her palm. "You'll recall, Mr. Powell, that it was explicitly included in the record by Mr. Hardy himself."
"But that was during the Hollis phase of the trial. It has no bearing on what Jennifer Witt was convicted of."
Villars did not see it that way. "It was your decision to combine the counts in this trial, Mr. Powell. It's your problem if something leaks over. But" – she turned back to Hardy – "this affidavit does not say what Lightner's evidence is."
Hardy knew that. He had no immediate answer for it. "It will come out in his testimony."
"Oh for the love of God…"
Villars pointed at Powell. "Watch your language, Mr. Powell. This court will not tolerate blasphemy."
"I'm sorry, Your Honor, but I fail to see what we're trying to get to here. You've already said you're not allowing Mr. Hardy's so-called evidence-"
"On the motion for a new trial." Villars didn't like it but she understood her duty. If there was a reason that Jennifer should not be sentenced to death she had to consider it. "On the motion to mitigate, I think I should listen to what Dr. Lightner has to say. If it's a fact, if Mr. Hardy can prove by Dr. Lightner's testimony, that Mrs. Witt had been psychologically and physically abused, she deserves consideration of that fact before I sentence her."
"If it's a fact at all, Your Honor. Mr. Hardy gives no indication that he's got any facts."
Villars pondered that. "Mr. Hardy, can you tell us anything of the substance of Dr. Lightner's proposed testimony?"
This was Hardy's hand and he had to play it. "I'm sorry, Your Honor. You can read Dr. Lightner's affidavit – I'm reluctant to try to paraphrase his testimony in any more detail… I might inadvertently misinform the court."
This was something they all understood. Hardy wasn't sure how much he could get out of Lightner but he couldn't say that.
Villars rubbed the papers between her fingers, the sound dull yet somehow insistent. "I'll let Dr. Lightner begin, Mr. Hardy," she said at last. "But I warn you…"
Hardy knew.
"What is he going to say?" Jennifer whispered to Hardy, grabbing his arm. "He thinks I'm guilty."
Hardy had to admire it – she wasn't budging on her story. There hadn't been the slightest slip or deviation from it in all these months. She flat did not do it. Of course, she would not be the first killer to deny it to the death.
He leaned over, urgent. "Trust me here. Don't interrupt. I believe you." It was his turn to squeeze her arm. He pulled her toward him. "Do you hear me? I believe you."
Villars was now looking down on Lightner. "Doctor," she began, "I want to be clear here. Your testimony today will not be admissible regarding the guilt or innocence of Mrs. Witt. That has already been decided. However, the court understands that you have information that might have some influence in mitigating the death penalty that the jury has recommended."
Lightner swallowed.
"Is that so?"
The doctor shrugged, looking to Hardy for help. "Yes, Your Honor, I believe so."
Villars nodded. "Okay, Mr. Hardy?"
Hardy rose slowly. "Dr. Lightner, what is your relationship with the defendant?"
"I am her friend and her psychiatrist."
"How long have you been her psychiatrist?"
"About four years."
"And her friend?"
"I've considered her my friend all along."
"And in your role as friend, doctor, have you seen Mrs. Witt other than in circumstances that might be described as professional? Lunches, dinners, that sort of thing?"