“Nancy,” Hardy said abruptly, “could your daughter have killed Matt, her son, even by mistake?” He held his breath, waiting.
She shook her head. “No. If she did, even by accident like you say, she would have killed herself.”
Powell got up slowly. He knew this was emotional testimony and he didn’t want to appear callous himself, but he felt he had to object to the speculation. Villars sustained him.
But Hardy at least had what he wanted. He went on to his last prepared questions, and to the answer he expected but that he believed was genuine. “What are your feelings for your daughter now?”
“I love her,” she said. “She’s all I have left.”
Powell knew he had his work cut out for him, especially since Villars had denied a recess before his cross. Here was an emotionally charged, physically abused woman, and his job was to discredit her, take her apart. If he was going to be effective, it had to be a slow dance.
He smiled, breaking the ice. He had no doubt that she remembered him from the previous night in the homicide detail, but he had no choice—he couldn’t come out swinging. He was going to be her friend, just clarifying a few little things. Her shoulders were forward, hunched, defensive, but she gave him a tentative smile. It was a start.
“Mrs. DiStephano, you and your late husband also have a son, don’t you?”
This, from out of left field, put her off balance. “Yes. Tom.”
“And was Tom ever the victim of your husband’s abuse?”
“Phil hit Tom a few times when he was younger, but it was more like just spankings. He never hurt him.”
“And how are the two men now? Are they close?”
Hardy stood up. “Your Honor, if it please the court, Mr. Powell knows full well that Mr. DiStephano is deceased.”
It was casual, and Hardy’s phrasing of the objection sidestepped the overt admission that Nancy had killed him, if anyone didn’t already know. Powell gestured apologetically. “Did Tom ever witness your husband beating you?”
“Yes.”
“Yes.”
“Just like Jennifer did?”
“Yes. I mean until later.”
“What happened later?”
“Well, later, when Tom got older, he’d, like, he tried to protect me. So Phil would make sure Tom wasn’t around.”
“But that wasn’t the case with Jennifer?”
“I’m sorry. What wasn’t?”
“Your late husband, Phil, would hit you even if Jennifer was around?”
“Sometimes.”
“And she didn’t try to stop it?”
“She couldn’t stop my husband. I couldn’t . . . ” She stopped, realizing that finally she had done just that. “He was too strong. Jennifer just hid, I think.”
“So Jennifer hid and watched her father beat you without trying to help you in any way. But your son, Tom, tried to step in. How do you feel about your son now?”
“Tom? He’s a good boy.”
“You love him?”
“Of course. He’s my son.”
“And of course mothers love their sons.”
“Yes.”
Powell let that sink in. “And yet you testified that Jennifer was all you had left?”
Nancy glanced in panic around the room, then looked at Hardy. He nodded. It was okay. She was doing fine.
“That was a figure of speech,” she said. “She’s the only daughter I have left.”
“And you are close to her?”
“Yes. Very close.”
“You’re very close. I see. Can you tell the jury roughly how many times, in the past year before your daughter was arrested, that you visited her at her house?”
Hardy put a hand to his forehead. The trap was going to spring here. Jennifer had her hand on his arm.
Nancy hesitated, sitting back now for the first time. Seconds crept by.
“Mrs. DiStephano,” Villars prodded, “please answer the question.”
Powell waited some more. He wasn’t pressing—it was an obvious and simple question, hanging in the room. No one, least of all Nancy, was apt to have forgotten it. “Not last year,” she said at last.
“You didn’t visit your daughter’s home during the last year?”
“No.”
“How about visits to your home? Did she come and visit you?”
“No.”
“Not at all?”
“No.”
Powell did a three-sixty, his expressive face showing every nuance of his deep surprise. “Well, how about the year before that?”
Nancy started to sound a little snappish. “No, we didn’t see them very much. Larry was . . . Larry didn’t want us to.”
“Larry didn’t want you to.” Powell, sparing Nancy’s feelings, a good guy, tried to find a way out for her. “Then, with your very close relationship, you and Jennifer must have spoken on the phone quite a lot.”
She looked down. “She was very busy.”
“Your daughter was busy. Did she have a job?”
“I had a job. I have a job.”
“Which left nights and weekends—is that right?”
Hardy stood up. “Your Honor, this is badgering.”
“Overruled.”
Powell asked again. “Just approximately, Mrs. DiStephano, how often did you and your daughter speak?”
Nancy kept her eyes down.
“Every week? Once a month?”
“She always called on my birthday. I always called on hers.”
Powell let the words speak for themselves. He nodded, then walked back to the prosecution table. “I’d like to explore one last point—you’ve told us, Mrs. DiStephano, that Matt was Jennifer’s life, that she even spoiled him. I wonder if you could be more specific.”
Again, the eyes came to Hardy, pleading for help. “What do you mean?”
“I mean, if you didn’t see much of Jennifer and Matt, which you’ve just told us, how do you know how she felt about him or how she treated him?”
“Well, when he was younger, when he was a baby—”
“Matt was Jennifer’s life then?”
“Yes.”
“And now?”
“Yes.”
Powell was still trying to seem gentle, generous. He came close to the witness box, speaking softly. “Mrs. DiStephano, I just don’t see how you can know. Please help me here.”
Nancy sat quietly for an hour’s worth of fifteen seconds. Finally Hardy stood and asked if a question had been asked. Powell gave it some more time, then sighed, saying he supposed not. Mrs. DiStephano could step down.
49
Finally, after lunch, the defendant took the stand.
She wore a taupe-colored suit with a bright multicolored scarf. Hardy wasn’t sure how he felt about the outfit—it gave out conflicting messages. On the one hand, it cut Jennifer away even further from the common thread shared by the rest of the people on the jury, which was not good. She needed their empathy, not their envy. But he had to admit, and statistics supported it, that there was a subtle dynamic at work in death-penalty cases. A natural reaction, he guessed, although not a particularly noble one. A jury would only be likely to vote for the death penalty if it had become convinced that the defendant was, in some tangible way, a kind of monster, a deformity cut off from the bonds of humanity. To avoid this impression—shallow as it might be—Jennifer’s clothes would help. Looking as she did, dressed as she was, she was very much a human presence, not a nonperson, certainly not a monster. More than that, there was something in her physical beauty and carriage that was generally highly valued in America. Hardy hoped the jury—especially the men—would not be inclined to vote to turn this suffering beauty into a corpse.
Of course, his fear in calling her to the stand was that by opening her mouth she would break the spell cast by her appearance. And Hardy well knew that from behind that appearance might erupt someone to turn off even the most predisposed in her favor.
They had discussed the form
at for this testimony, and had decided that Jennifer should say what she had to in her most modulated voice. She would be her best self. The risk would come with Powell’s cross-examination. Meanwhile, Hardy tread lightly.
“Jennifer, you’re up here today to argue for your very life. Is there anything you would like the jury, and the judge, to know?”
She turned to them. “I know that you have found that the evidence was enough to convict me.” Swallowing, nervous, she looked at Hardy, who nodded. “I’m really not here to make an argument for my life, as Mr. Hardy says. I’m here to tell you that I did not do any of this. I did not kill my husband. I certainly did not kill my son.” She swallowed again. “I admit I may not have been the greatest mom in the world, but I loved Matt . . . ” Again, she stopped, bit down on her lower lip. Gathering herself, she forced a weak smile. “I guess that’s all.”
Powell was scribbling furiously—about what?
Hardy had intended to question her some about Larry, but this statement was so clean that he was tempted to stop right there. The jury now had heard her deny the killings with her own voice—it just might be all he needed, or at least the best he was going to get.
But on the other side, the jury might feel it was too easy to fake something so short. He felt he had to bring her out a little more—as Freeman had said, life was a risk.
“Do you want to tell us about the morning of December 28?”
Powell stood up. “Your Honor, this testimony belonged in the guilt phase of this trial.”
Hardy had to get in a word before Villars ruled. “This is Jennifer Witt’s story and the jury deserves to hear it, Your Honor.”
The judge frowned as she always did when counsel went at each other; then she agreed with Hardy. Turning to Jennifer, she said, “Tell us about that morning, Mrs. Witt.”
Jennifer nodded. “I got up early because we’d had dinner late and I hadn’t done the dishes from the night before. And Larry was going to be home all day, all week really, so I wanted to be sure the house was perfect. I wanted to go jogging later, which I usually did, so I just put on my running clothes and went downstairs.
“It got pretty late, maybe eight-thirty, but it was Larry’s vacation and I thought he should be able to sleep in if he wanted. Then finally he came down. Matt was still sleeping—he was a good sleeper.”
Nice touch, Hardy thought shamelessly.
“Anyway, Larry reads the paper in the morning with his breakfast. It’s just something he always does . . . ” She paused, collecting herself. “I mean, he always did. But this morning he came down angry.”
“Over what?” Hardy said.
She swallowed hard. “I wasn’t dressed right.”
“Didn’t you say you were in your running clothes?”
She nodded. “But that wasn’t going to be for an hour or so, you see? I guess I still looked kind of like I just rolled out of bed. I mean, my hair and no makeup.”
“But hadn’t you just been up for a while cleaning house, doing the dishes?”
Jennifer might not want to talk about Larry beating her, but this was good stuff for her. Saint Larry was taking a few hits and Hardy was trying to keep Jennifer swinging. “Well, yes, but . . . he just didn’t like it.”
“Did he yell at you?”
“No. I could just tell he was upset. You know?”
“I think so, Jennifer.” Hardy included the jury. “And then what happened?”
“Well, I got his coffee and then I tried to rub his shoulders, which he liked when he was tense about something, but he shrugged me off.”
“He shrugged you off? You mean he physically moved you away?” Powell seemed willing to let him lead the witness and Hardy would use a leash if he had to.
But Jennifer wouldn’t go along. “No. You know, he just didn’t want me to look this way. So I told him I’d go upstairs to change if he wanted me to . . . ”
“Even though you were still going running in an hour?”
She nodded. “If he wanted. It wasn’t a big deal to me. But then he told me not to bother. He said he’d been awake for an hour upstairs, going over our bills. He was worried about money. Christmas, you know, that sort of thing.”
“And what happened then?”
“It got to be a family budget argument.” Jennifer was facing the jury. “You know, everybody has them.”
“All right, and then what?”
“Then Matt came down, rubbing his eyes, like he did when he woke up . . . I didn’t like to have Matt hear us arguing and yelling, so I stopped and went into the kitchen and made him some French toast, which was his favorite. Then I went upstairs to make the beds. I thought maybe it would all blow over.”
“And did it blow over?”
“No . . . When I came down Larry started in again on how I looked. He thought I’d gone upstairs to change into something decent. I told him I was going running now, but he was still mad about the other . . . about everything. So we had more words and Matt was crying. I thought I could make it stop if I left, so I did.”
“You went out running?”
“Yes.”
“And what time did you leave the house?”
“I don’t know. I walked down a couple of blocks, which is what I always do to warm up. Then I started running.”
She told it well . . . the stop at the bank, her return to the house, the inventory where she didn’t list the gun as missing because she hadn’t gone back into the bedroom. Hardy was coming to the opinion that in his fear over Jennifer’s abrasive personality, Freeman had badly erred in not putting her on the stand. She had a consistent story to tell and she told it well, her voice gaining in confidence as she went on until her direct testimony came to an end just before they broke for lunch.
If only she could stand up as well to Powell’s cross-examination.
“I’d like to start by asking you to clarify something for me. Is that all right?”
During lunch in the “suite,” Hardy had let her savor her partial victory for a few moments, and then thought he’d best begin to prepare her for Powell’s expected onslaught. Perhaps it would work—she was facing Powell calmly now, her eyes clear as she nodded.
“You’ve said, and I quote: ‘I didn’t kill my husband. I certainly did not kill my son.’ Do you mean that you’re not as certain that you didn’t kill Larry?”
This was a get-your-goat question and as such, Hardy thought, it was good strategy. But he wasn’t about to let Powell get away with it. “Argumentative, Your Honor. What’s the substance of that question?”
Villars agreed. Jennifer did not have to answer, but Hardy could see that the question had rattled her, already chipped at her reserve. He caught her eye and half-lifted a palm—keep cool, Jennifer, don’t let it get to you.
Powell smiled at the defendant and started again. “If you don’t mind, Mrs. Witt, I’d like to clear up one part of your story I still don’t understand. You’ve testified that when you came back downstairs after making the beds and so on, that you and your husband started fighting again.”
“Larry started yelling again, yes.”
“And Matt started crying?”
“Yes.”
“And as a mother, your response to your son’s crying was to leave the house?”
“I tried to stop it by leaving.”
“Yes, I see that, but how did you try to comfort your son? Did you hug him? Tell him you loved him?”
“No, not then. I thought when the fight between Larry and me stopped, he’d stop—”
“And that was the point, wasn’t it? To get him to stop?”
“Well, no. I mean, he would.”
“So you just walked out on him?”
Hardy stood up. “Asked and answered, Your Honor.” Disastrously.
Powell withdrew the question before Hardy could be sustained. He stepped closer to the witness box. “All right, Mrs. Witt. On another subject—you’ve mentioned that you and your husband had this fight about money—family budg
ets, the kind we all have, is that right?”
“Yes.”
“And your husband, Dr. Witt . . . was looking over your family budget before coming down to breakfast?”
“Yes.”
Powell had something, Hardy realized. Relaxed, taking his time, he went back to the prosecution table and took a document from Morehouse. He walked back to the center of the courtroom. “Your Honor, I have here a copy of a statement of an account of Mrs. Witt’s from Pioneer’s Bank. I’d like to introduce it into evidence as People’s 14.” Jennifer visibly tensed.
Hardy’s stomach tightened. As Powell came over to his table to show him the bank statement, he decided to buy her some time. “Your Honor, sidebar?”
The judge, scowling, motioned Powell and Hardy forward. “What is it now, Mr. Hardy?”
“Your Honor, this document wasn’t on the People’s evidence list.” During discovery, counsel for both sides were supposed to present the other side with complete lists of witnesses they intended to call, and physical evidence they intended to present. Neither witnesses nor evidence had to be used, but if they were not listed beforehand they normally could not be used. In theory, at least, the courtroom was not a place to spring surprises—in practice, attorneys loved it when it worked out that way. “I object to its introduction now,” Hardy said.
“Counsel is mistaken, Your Honor.” Prepared for this, Powell motioned Morehouse up to the bench. The young assistant gathered a thick stack of papers and brought them forward, handing them to Powell, who in turn passed copies to Hardy and to Villars. “Line eighteen, page one of the evidence list, Your Honor.”
Hardy read it. It said: “Financial papers.”
Powell was now holding up the thick sheaf. “These are the papers, a complete copy of which we presented to defense counsel on”—he paused, checking another page—“August 1.”
Hardy and Freeman had, of course, received this package. It was undoubtedly somewhere in Hardy’s office among the seven book boxes filled with statements, interviews, police reports. Because Powell hadn’t seen fit to introduce it in the guilt phase, Hardy had allowed himself the faint hope that Powell hadn’t noticed it in the mass of documents. No such luck.
The 13th Juror Page 47