The 13th Juror

Part Three
27

On Monday, July 29, Oscar Thomasino had slammed down his gavel and sent the case of The People of The State of California v. Jennifer Lee Witt to Department 25, the courtroom of Judge Joan Villars. That formality was quickly followed by a flurry of motions made and denied. Jury selection would begin as scheduled on August 23.

David Freeman had immediately filed his pro forma Penal Code 995 motion for dismissal, arguing that there was insufficient evidence to proceed and, as expected, Judge Villars had thrown that out. If a grand jury had found sufficient evidence to indict on three counts of murder, it was an unusually brave or foolish judge who would cast aside their decision.

Jennifer's hair had grown out, her bruises had disappeared. When she appeared in the courtroom for the first time flanked by two bailiffs, a buzz went up in the gallery. The defendant looked like a movie star.

Gone was the red "jail escapee" jumpsuit; gone were the leg irons and handcuffs. Judge Villars, prodded by Freeman, had agreed that they would be prejudicial to his client. Also, there would be no need to shackle her to her chair at the defense table. Although Jennifer had broken out of jail, even Powell admitted that there was little risk that she would bolt and escape the courtroom.

Jennifer wore low heels, nude hosiery, a stylish, muted coral dress with a hem an inch above her very attractive knees. Freeman had arranged to have someone come into the jail and do her hair, and now it shone clean, blonde, just long enough to be feminine and proper. Diamond stud earrings. A tasteful touch of make-up.

They led her in before the judge entered, while the members of the media as well as the eighty potential jurors were finding their seats behind the rail. Hardy, who had been talking with Frannie at the defense table on the left side of the courtroom, heard the noise in the gallery and looked up, stopping in mid-sentence. "My goodness," he said.

Freeman half-turned. A few flash bulbs went off – Villars would put a stop to that as soon as she came in, but for now Jennifer was fair game. She smiled in her ambiguous way – either shy or posing – and more bulbs went off.

The bailiffs delivered her to Freeman, who put an avuncular arm around her waist, guiding her to a chair between himself and Hardy. "You look good," Freeman told her. "Just right."

"I'm scared," Jennifer said.

Freeman rubbed a hand over her back. "It's all right, that's natural. You just sit here and relax."

Hardy noticed that her hands were shaking. She clasped them together on the table in front of her, her fingers tightly intertwined. Freeman came around on her right and covered them with one of his gnarled paws.

Over the past weeks Hardy had seen the earlier animosity between lawyer and client dissipate as they worked together fashioning a defense. Now, though Freeman still apparently believed that Jennifer was lying about her innocence, he had somehow convinced her that he was her best and most trusted friend – that he, personally, was her only salvation. Accordingly, she had come to cling to him, her life raft in a stormy sea. That was all right with Hardy, who might yet have his own role to play, and it would not be as liaison between Jennifer and David Freeman.

It was 9:23. Villars would enter in seven minutes. Dean Powell and his associate, a young Assistant DA named Justin Morehouse, were conferring, shuffling papers on their table a dozen feet to Hardy's right.

"Jennifer."

Dr. Ken Lightner had come up to the rail, and Jennifer turned in her chair, then stood and put her arms around him. One of the bailiffs came moving up fast, but Freeman held out a hand and somehow restrained him from breaking them up. It was over in seconds anyway, Jennifer pulling away, kissing Lightner's cheek.

Hardy made a mental note – probably Freeman did too – to caution Jennifer about these kinds of public embraces. They could too easily be misinterpreted. Both Hardy and Freeman knew about the bond between Jennifer and Lightner, but it would be difficult to explain to a jury. Woman accused of killing two of her husbands hugs another man as her trial begins. No, it wouldn't look good.

Jennifer, Freeman and Lighner were huddled, whispering together at the railing that separated the gallery from the courtroom proper. Walter Terrell had appeared and was having a few words with Powell and Morehouse.

Even though he would play no active role in this part of the trial, Hardy's mouth was dry, his stomach jumpy and sour. He turned in his chair to pour himself a glass of water in time to see the door open behind the judge's bench, the clerk intoning that all should rise, Department 25 of the Superior Court for the City and County of San Francisco was in session, Judge Joan Villars presiding.

The concept of voir dire – the questioning and selection of jurors – had undergone a sea change in California since the passage in June 1991 of Proposition 115. Before that time, attorneys on both sides of a case were given a wide latitude in questions they could ask prospective jurors. What did they do for a living? How many brothers and sisters did they have? What were their hobbies? Favorite books and/or movies? Feelings about puppies? Cats? Goldfish? Almost anything went if it might serve to bring out a prospective juror's character. Often the questions were thinly disguised speeches designed to sway prospective jurors. And because of this, jury selection in a capital case such as this one could easily take as long as two months and in some cases longer.

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 guilty-or-innocent phase and wasn't inclined to challenge. The down side, 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 crap shoot. 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 hard-working 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.