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 late."
"The law recognizes a concept, and the judge will give you instructions regarding it, called lingering doubt. Lingering doubt does not undo what you have found beyond a reasonable doubt, but it does contemplate a situation such as we have right here before us. Though you have found Jennifer guilty" – Hardy thought he'd best keep repeating this to make a following distinction – "let's see what even the prosecution acknowledges that we don't have, and why each of you, if you should vote the death penalty, might find yourself, over the coming years, with some very haunting and serious lingering doubt."
Like Powell, Hardy had begun in the center of the courtroom, but as he began to loosen up, he moved closer to the jury box. He had all of their attention – this was, after all, his first appearance in a speaking role before them and there was a curiosity factor. But he thought it was more than that – up to this point, his statement seemed to be hitting a mark.
Slowing himself down, he went to the table, pretended to consult some notes, and took a drink of water. He returned to where he had begun. "Number one, ladies and gentlemen, we don't have anyone who saw Jennifer Witt shoot anybody. Nobody. Not one witness. We have heard a witness, Mr. Alvarez, say that he saw Jennifer outside her house right after the shots. Mrs. Barbieto said that she heard Jennifer yelling inside the house before the shots, but neither of these are eyewitnesses to the shooting itself. And, let me remind you, Mrs. Barbieto was unclear as to how long exactly it was between Jennifer's yelling and the shots, and there is the possibility" – even tough they'd apparently chosen to disregard it in their deliberations – "that Mr. Alvarez saw someone else outside the house on that morning and thought it was Jennifer."
"Objection, Your Honor. Counsel is arguing evidence."
"I'm reminding the jury of previous testimony. That's all, Your Honor."
"This is not a round-table discussion, Mr. Hardy. But the objection is overruled."
So he won one and got slapped on the wrist at the same time. Villars might, as she claimed, be fair to a fault, but that didn't make her any easier to deal with. "Thank you, Your Honor." He turned back to the jury. "What else does the evidence leave unexplained? True, Jennifer stood to collect five million dollars, presumably the motive attributed to her for these murders. But if that is the case – if this were a meticulously planned murder for money – where is the evidence of the planning? What was the fight about, the one overheard by Mrs. Barbieto? If Jennifer killed her husband, might it have been because they were fighting? Was it in the heat of argument, without any premeditation at all? Did Matt somehow, tragically, simply get in the way? These are questions that are not answered by the evidence. They cannot be answered."
He paused again, letting his words sink in. "There are two final points I'd like to make to you. The first is this: that Jennifer Witt said and says she did not commit these crimes. You may dismiss this as self-serving, but her stance, her position, has never wavered throughout this trial. She has pleaded not guilty, and she has stuck with that throughout. She is not claiming she was temporarily insane, or pressured by issues beyond her control or" – Hardy took a breath – "or trying to escape an abusive situation at home." He hurried on. "She could have said any of these things and hoped you would find her guilty, if at all, only of some lesser offense than first-degree murder, death-penalty murder. But she did not do that. She has never done it. No bells or whistles, no fancy defense moves to save her life, and believe me, my colleague David Freeman has a few he can pull out if he's asked to."
Hardy went back to the defense table and took another sip of water, gathering his thoughts. "The last point, ladies and gentlemen, concerns a crucial factor that has thus far been missing in the record of this trial – and that is the fact that because no one actually saw Jennifer kill Larry and Matt Witt, the possibility must remain that someone else could have done these deeds."
Powell stood quickly. "Your Honor, the verdict is in."
But again he was overruled. Hardy was not arguing a logical inconsistency nor, strictly, was he arguing hypothetically. He could continue, but "walk carefully, Mr. Hardy. There's a thin line here."
Acknowledging Villars' warning, Hardy turned to the jury. "I am not here to prove to you that your verdict was wrong. You worked long and hard coming to your decision and I respect your work. But the fact does remain – someone other than Jennifer conceivably could have had a reason to kill Larry Witt, and someone other than Jennifer conceivably could have done it. So as this portion of the trial proceeds, you are going to be hearing some about Larry Witt – the kind of man he was, his business dealings, some of the other matters he was involved in. I believe that a number of these considerations are persuasive and might bring you to that lingering doubt I mentioned earlier."
He paused, took a breath. "Ladies and gentlemen, there is one last, painful thing. Mr. Powell has gone to great lengths in his opening statement-"
Powell wasn't having it. "Objection. This is not the time for rebuttal."
Villars didn't hesitate. "Sustained." She waited. Hardy almost felt she was daring him.
"All right," he said, turning to the jury, including them in his frustration out of Villars' line-of-sight. "Now I must, I must, say a word about the death of Matthew Witt." Again he paused, and it was not just for dramatic effect. He could not tolerate having the tragedy of the boy's death, however it had transpired, misrepresented to the jury. "No evidence has been introduced, nor will any be, that Jennifer Witt was an abusive mother. If there were doctors out there who could testify that Matthew Witt was the victim of any kind of abuse, believe me, they would be here as witnesses for the prosecution. There are none."