Since Proposition 115, however, voir dire was conducted by the judge and—as the proposition had contemplated—tended to go much more quickly. Attorneys could supply the judge with a list of questions they wanted to see asked, but often these were ignored. Likewise, in the case of Jennifer Witt, Freeman had asked Villars if he might ask direct questions of some of the jurors. The answer had been no.
Lawyers for the prosecution and the defense still had their twenty peremptory challenges—the right to dismiss a prospective juror for any reason whatsoever or no reason at all—but the empaneling of the jury was now much more outside the perceived control of either counsel. It was the judge’s show.
Jurors were asked if they had read about the case in the newspapers, if they could sit through a three-month trial and, perhaps most importantly, if, in the appropriate case, they could vote for the death penalty. Out of the first eighty jurors, after perhaps three days of questioning, maybe four would be available for service and they would be told to come back at the end of September. They would be part of the pool from which the twelve jurors and six alternates would be chosen. Then Villars would send for eighty more.
Except for the half-moon reading glasses, Judge Villars was Hardy’s notion of an elderly Joan of Arc. With her helmet of gray hair over a benign and handsome face, Villars might strike a casual passerby on the street as a grade-school principal, fair but firm, perhaps even with a rogue streak of humor.
But as Freeman had told Hardy when they had drawn her for this trial, looks could be deceiving. Villars was close to humorless, an authoritarian on the bench. Freeman did not think it was purely the luck of the draw—although it was supposed to be—that had brought this capital case to her courtroom. He fancied that he smelled the sulfurous machinations of Dean Powell behind the scenes.
Villars was also the least likely judge in Superior Court to be reversed on appeal. If Powell got a conviction in her courtroom, there was a likelihood that it would stick.
Hardy did not like something else—Judge Villars wasn’t likely to overturn a jury’s recommendation for the death penalty, if it came all the way to that. When they had drawn her, Hardy had tried to convince Freeman to challenge out of her department. Similar to their rights with jurors, attorneys for either side in California had one peremptory challenge of the judge assigned to any given case. The result in theory was to keep judges from getting too uppity, inserting too much of their personalities or beliefs into trials designed to be objective. If a judge made things too tough for the prosecution, for example, the DA’s office could decide to challenge that person “out of the building,” and a few judges over the years had found their careers ended when they had been too free with mandating from the bench some uniquely San Francisco notions of fair play.
Legally, in theory, judges had tremendous responsibility and leeway—even in a capital case, months of a prosecutor’s hard work and a jury’s long-contemplated decision could be overridden by any judge who decided—for almost any defensible reason—that justice was not being done. But it was also true that any judge who exercised that privilege too often might be off the bench.
Hardy had wanted to challenge Villars. In spite of her gender, she had acquired the reputation of being especially hard on women. Throughout her career she had, it seemed, leaned over backward to avoid giving the slightest appearance of favoritism to female attorneys, staff, defendants. A few years earlier she had been in the vanguard of a successful effort to dump the Chief Justice of the California Supreme Court—a woman—because of her “soft stand” on the death penalty.
Villars was nobody’s pussycat, all right, but Freeman had been adamant. He wanted her. He’d been delighted with the choice. He could win with her.
Why? Because Freeman believed that Villars was, in fact, absolutely impartial, and very few other judges were. It wasn’t that Villars was so tough on women—it was that she treated them exactly like she treated men. And in San Francisco, filled with vocal minority groups of every stripe, Judge Villars played it by the book. She thought men and women were equal before the law in every way. That was how she treated people and it was how she judged them—men, women, whites, blacks, Hispanics, gays, everybody.
So Freeman was confident that, with Villars on the bench, he stood the best chance of winning the guiltyor-innocent phase and wasn’t inclined to challenge. The downside, of course, was that, if Freeman lost, Villars would be a very unsympathetic choice for judge in the penalty phase.
For the eighth time in five weeks, eighty people filed into the courtroom. The clerk read off twelve names and those people came out of the gallery and filed into the jury box. All eighty swore to answer truthfully any question pertaining to their qualifications to serve as jurors.
Judge Villars began: “Jennifer Lee Witt has been charged with three counts of murder in the first degree and special circumstances in an indictment returned by the grand jury for the State of California.” She continued, asking the standard battery of initial questions: Did anyone on the panel know the defendant? The victim? How about the attorneys representing them? Had anyone been a victim of a violent crime? Did anyone have a policeman as a relative? A lawyer? A judge? Did anyone consider themselves familiar with the case from reports they’d seen on television or read in the newspapers? Had any of them been arrested? Hands went up in answer to each question, and the lawyers took notes.
And so it went, Jennifer leaning close to Freeman, occasionally turning to Hardy with a question or comment. They were making notes on their peremptory challenges, deciding who they would dismiss, although there wasn’t much to go on.
Jury selection, even in the old days of voir dire, was, of course, no exact science. Now under the new rules it was close to a crapshoot. Did Juror Number 5 look like she was sympathetic to Jennifer? Would the young stud, Number 11, want to give Jennifer a break because she was so attractive, or would he identify with Larry Witt, a hardworking guy who got stuck with the wrong woman? How about the Plain Jane who was Number 9? Would she be jealous of Jennifer’s looks, or would she perhaps see her as a misguided sister who had been maligned and unfairly accused?
None of the first twelve survived the initial questioning. Twelve more were called. By September 27 there were ninety-two people eligible to serve as jurors. All the others had been excused for “good cause,” hardship or bias disclosed during the initial questioning. Only now did the lawyers use their peremptory challenges. Powell challenged eleven times. Freeman used all twenty of his. They picked six alternates.
28
The six weeks of jury selection had passed for Hardy in a kind of haze. San Francisco had its allotted two weeks of warmth in early September, and every workday Hardy, Freeman and Jennifer had sat at their table, Powell and his young assistant Morehouse over to their right, going over the same critical routine again and again.
It was grueling, detailed work that was emotionally and physically draining. Hardy was needed in court. Everything he might otherwise actively pursue—the “other dudes,” for instance—had to get put on hold. Every night, after leaving the Hall of Justice, Hardy and Freeman would discuss prospective jurors and strategies until they began to babble, then they’d do it again the next day.
At home, Frannie held on. Her husband came home late, left early, was distracted when he was there. They went away on two of the weekends—once without the kids to a cabin in the pines around Lake Tahoe. They decided they would get through this and have a real life again someday.
Now it was Monday, October 4, the players were assembled, the gallery was full, and Dean Powell stood at last, ready to begin. Hardy thought that the contrast between him and David Freeman couldn’t be greater. Powell radiated authority and personality. He wore a wel ltailored dark suit with a blue tie—no need to emphasize the power with red or with pinstripes. His face, chiseled, strong and bronzed, wore an expression of amiable concern. Occasionally he would run his hand through the mane of white hair, the only combing it needed.
Freeman and Hardy exchanged glances. They both knew the defense would be within their rights to object to this little massaging of the jury by the prosecuting attorney. Such a welcome was really the judge’s prerogative, but many attorneys on both sides often tried to show what nice people they really were underneath the lawyer costume. Freeman wasn’t about to object—the jury would find it mean-spirited.
Most judges let the welcome party go on a bit. Villars did not. Her gavel came down with a crack. “Mr. Powell, I’ve already welcomed the jury and thanked them for their time. This is your opening statement. Let’s hear it.”
Hardy kept a straight face. Freeman brought a hand up, perhaps to cover a smile.
Powell bowed slightly toward the bench. “Of course. Sorry, Your Honor.”
He turned back to the jury. There were four men and eight women, five blacks, four whites, three female Hispanics. One retired doctor. Three housewives. Two unemployed. Four secretaries and an office manager. A pari-mutuel clerk. Perhaps two gay men. You could break it down any number of ways and it still came down to a guessing game. No one doubted that Villars had done a competent and quick job of it, and no one had much of a clue what any of these people were like except that they all professed to believe in the death penalty if warranted.
Powell smiled the low-wattage version. “Judge Villars has asked me to proceed with my opening statement, and that’s what I’m going to do.” He nodded, making a little eye contact here and there. “What is an opening statement? Well, it’s really quite simple. I’m going to talk a little about the defendant in this case, Jennifer Lee Witt, and the three people she killed—two husbands and”—here Powell stopped for effect—“and her young son.”
Another pause. “The roots of this case go back a long way, all the way to 1984. The People of the State of California believe and will prove to you, beyond any reasonable doubt, that Jennifer Witt, on or about the 17th of September of that year, injected her husband at the time, Edward Teller Hollis, with a lethal dose of atropine, which is a derivative of jimson weed, more commonly known as deadly nightshade.”
Powell wasn’t using theatrics, wasn’t playing the personality game he did so well. Perhaps he had taken the early cue from Villars, but his version of events was beginning to come out free of gimmickry, straightforward and plausible.
“At the time of the death of Mr. Hollis, and while she was married to him, we will prove to you that Jennifer Witt was romantically involved with another man, a dentist, Dr. Harlan Poole. Atropine is a common medication, available in most dentists’ offices and specifically available nine years ago in Dr. Poole’s office. It is used to inhibit the flow of saliva.”
As though stricken with dry mouth himself, Powell went to the prosecution table and drank from a glass of water. Hardy found himself getting thirsty. Freeman drank. Even Villars took a discreet sip on the bench.
Powell came back to the center of the room. “Why did Jennifer Witt kill her first husband? The prosecution will introduce to you exhibits that prove the existence of a life-insurance policy in the amount of seventy-five thousand dollars, payable to Jennifer Witt in the event of her husband’s death. Within four months of the death of Mr. Hollis, Jennifer received that payment in full. Seventy-five thousand dollars was a lot of money in 1984.”
“Objection, Your Honor.” Freeman half-stood. He had to say something to break up Powell’s rhythm, even though this was the most innocuous of his statements. But while it could be debated whether $75,000 was a lot of money in 1984, it couldn’t be that the opinion was evidence. It wasn’t.
Villars sustained Freeman but gave him a look. Opening statements could not argue the law and they could not editorialize, but a wide latitude was often given, and Villars was telling Freeman that if he was going to object to Powell’s peccadilloes in these areas, she would sustain Powell if he tried to do the same to him. The interplay of the trial was beginning.
If Freeman’s intent was to bump Powell’s rhythm, he failed. The prosecutor was sailing and this objection was nothing to him. As soon as Villars said, “Sustained,” he plunged ahead. “As all of you ladies and gentlemen of the jury are aware, this is a capital case, alleging special circumstances. And one of the special circumstances is that this killing of Edward Teller Hollis was a cold-blooded murder of a human being for monetary gain. It does not matter that this act occurred some years ago. There is no statute of limitations on murder.”
Jennifer, sitting between Hardy and Freeman, sat ramrod stiff on the front half of her seat. Everything about her seemed in tight control, except her nostrils tended to flare with her breathing.
Powell looked directly at her and paused in his statement. Was it a challenge to him, her cold gaze of dismissal? He allowed himself a nod, almost friendly, and next to Hardy, Jennifer shifted.
“A year after her first husband’s death, that is, in 1985, Jennifer married Larry Witt, who had left the woman who had put him through medical school . . . ”
Freeman stood again, objecting. Again he was sustained, this time more forcefully. This was the beginning of what would possibly be many attempts at simple character assassination and Villars was giving Powell warning that she wasn’t having it. It wasn’t evidence. Don’t try to introduce it.
It was a small good sign and Hardy made a note on his pad. Had the silent exchange between Jennifer and Powell lured him away from his game plan, or had it been an unintentional gaffe?
But the prosecutor had a lot more to get out and he had everybody listening. “In 1985 Jennifer married Larry Witt, who was just setting up a medical practice. They had a son, Matthew, the following year. As Dr. Witt’s practice grew, they bought increasingly larger amounts of life insurance until, at the time of his death on December 28 of last year, Larry Witt was insured for two and a half million dollars.”
This was the time for a pregnant pause, and Powell took it. A susurrous breath went through the courtroom.
“Two and a half million dollars, ladies and gentlemen. We will show you this policy as one of the People’s exhibits, and you will see that it contains a clause providing for double indemnity should Larry Witt die a violent death. As he did. That brings the amount of the payment on his death to five million dollars. And I needn’t tell you that that’s a lot of money in any year.”
Powell glanced with a smile at Freeman, making nice-guy points with the jury. Freeman, who didn’t do suave as a rule, gave his impression of a smile back. Villars picked up her gavel but reconsidered and put it back down.
“Of course, the presence of an insurance policy is no proof of murder. Let’s be clear on this. We will show you—and prove to you beyond a reasonable doubt—that the actions of Jennifer Witt on the morning of Monday, December 28, will allow for no other explanation than that she shot her husband and son with her own handgun, then left her house in an effort to provide herself with an alibi for the time in question.
“Fortunately for the People of the State of California, we have two witnesses who will testify regarding this alibi. Between them, they will remove any doubt about Jennifer being in her home when the shots were fired. She was there, she had the gun, and she used it to kill her husband for his insurance.
“And finally, most tragically, we have young Matthew Witt.”
Next to Hardy, Jennifer slumped slightly. The anger either had passed or given way to something more powerful. For the first time, she hung her head. Freeman looked over and put his hand over her lower arm. She looked back up.
“Frankly, we cannot tell you why Matthew Witt had to die on that Monday morning. But die he did, shot with the same gun as the one that had killed h
is father. We will even concede that it might have been a mistake—the boy could have accidentally come into the line of fire. He could have startled Jennifer—”
“Your Honor, please. These conjectures have no place in an opening statement.”
Powell preempted the judge, apologizing. Freeman was right, he was sorry. He looked at the jury, slowly, up one row and back the next. He ticked the next points off with his fingers.
“Motive, means, opportunity. These facts remain, and we will prove them. And the facts will show that Jennifer Witt killed her husband for five million dollars—motive. The murder weapon was her own gun, which she and her husband kept in the bedroom of her house—means. She was alone in the house with her husband and son when she turned the gun on them—opportunity. We will prove these beyond a reasonable doubt and, in so doing, will recommend that a person capable of these crimes has forfeited her right to live in our society. Such a person—male or female—should be given the ultimate penalty. Such a person should be condemned to death. Thank you.”
In California, the defense has the option of delivering its own opening statement immediately after the prosecution’s, somewhat as a rebuttal, or of waiting until the prosecution rests its case. Freeman had done it both ways in various trials in his career, and this time he was choosing the latter. He wasn’t sure how things were going to break as the evidence accumulated, and he thought he would make more of an impression introducing things—if indicated—later on. He did not want to tip his hand.
The 13th Juror Page 24