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 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.