John Lescroart - The 13th Juror

"Self-defense is a justification for homicide, Mr. Hardy. If that was your defense, you and Mr. Freeman had every opportunity to bring it up earlier."

Hardy had known this was coming and was prepared. "That point is addressed in the other affidavit, Your Honor. David Freeman's. I did not have the opportunity. Mr. Freeman did. He chose not to do it. I was not Mrs. Witt's attorney in the guilt phase. My client shouldn't be penalized now because of Mr. Freeman's strategy." Hardy knew this was a reach… he and Freeman had been acting as a team, and Villars knew it as well as Powell. Still, technically at least, he wasn't wrong.

Villars sat, her face a mask.

"Your Honor," Powell said, "this battered woman question had never been introduced. It's not part of the record."

Hardy started to answer but Villars stopped him. "I know, Mr. Hardy, you don't have to remind me." She gestured with her palm. "You'll recall, Mr. Powell, that it was explicitly included in the record by Mr. Hardy himself."

"But that was during the Hollis phase of the trial. It has no bearing on what Jennifer Witt was convicted of."

Villars did not see it that way. "It was your decision to combine the counts in this trial, Mr. Powell. It's your problem if something leaks over. But" – she turned back to Hardy – "this affidavit does not say what Lightner's evidence is."

Hardy knew that. He had no immediate answer for it. "It will come out in his testimony."

"Oh for the love of God…"

Villars pointed at Powell. "Watch your language, Mr. Powell. This court will not tolerate blasphemy."

"I'm sorry, Your Honor, but I fail to see what we're trying to get to here. You've already said you're not allowing Mr. Hardy's so-called evidence-"

"On the motion for a new trial." Villars didn't like it but she understood her duty. If there was a reason that Jennifer should not be sentenced to death she had to consider it. "On the motion to mitigate, I think I should listen to what Dr. Lightner has to say. If it's a fact, if Mr. Hardy can prove by Dr. Lightner's testimony, that Mrs. Witt had been psychologically and physically abused, she deserves consideration of that fact before I sentence her."

"If it's a fact at all, Your Honor. Mr. Hardy gives no indication that he's got any facts."

Villars pondered that. "Mr. Hardy, can you tell us anything of the substance of Dr. Lightner's proposed testimony?"

This was Hardy's hand and he had to play it. "I'm sorry, Your Honor. You can read Dr. Lightner's affidavit – I'm reluctant to try to paraphrase his testimony in any more detail… I might inadvertently misinform the court."

This was something they all understood. Hardy wasn't sure how much he could get out of Lightner but he couldn't say that.

Villars rubbed the papers between her fingers, the sound dull yet somehow insistent. "I'll let Dr. Lightner begin, Mr. Hardy," she said at last. "But I warn you…"

Hardy knew.

"What is he going to say?" Jennifer whispered to Hardy, grabbing his arm. "He thinks I'm guilty."

Hardy had to admire it – she wasn't budging on her story. There hadn't been the slightest slip or deviation from it in all these months. She flat did not do it. Of course, she would not be the first killer to deny it to the death.

He leaned over, urgent. "Trust me here. Don't interrupt. I believe you." It was his turn to squeeze her arm. He pulled her toward him. "Do you hear me? I believe you."

Villars was now looking down on Lightner. "Doctor," she began, "I want to be clear here. Your testimony today will not be admissible regarding the guilt or innocence of Mrs. Witt. That has already been decided. However, the court understands that you have information that might have some influence in mitigating the death penalty that the jury has recommended."

Lightner swallowed.

"Is that so?"

The doctor shrugged, looking to Hardy for help. "Yes, Your Honor, I believe so."

Villars nodded. "Okay, Mr. Hardy?"

Hardy rose slowly. "Dr. Lightner, what is your relationship with the defendant?"

"I am her friend and her psychiatrist."

"How long have you been her psychiatrist?"

"About four years."

"And her friend?"

"I've considered her my friend all along."

"And in your role as friend, doctor, have you seen Mrs. Witt other than in circumstances that might be described as professional? Lunches, dinners, that sort of thing?"

He was fishing, but regardless of the answer he was also giving Lightner a big hole to skate through. He could tell from Lightner's posture, his eyes, that he understood what was being offered. "Yes."

What Lightner did not realize was the price Hardy would have to exact.

"Many times?"

"Several. Yes."

Then Hardy dropped his bomb. "Dr. Lightner, at the time of Larry and Matt Witt's death, were you Jennifer's lover?"

Lightner, apparently stunned, sat back in the witness chair, then turned to the judge. "Your Honor…?"

Villars shook her head no. "Answer the question, Doctor." Although he already had.

Hardy reminded him that he was under oath. He cast a helpless glance across the room at the defense table, at Jennifer. "Yes," he whispered.

Powell exploded. "Your Honor, this witness has already testified, under oath, that he and Mrs. Witt were not intimate."

Villars leaned over. "You're admitting to perjury here, Doctor. Do you realize that?"

Soberly, Lightner nodded, answered yes.

There was a ripple of noise in the courtroom and Villars hit her gavel once. She motioned the lawyers to the front of the bench. "This is your friendly witness?" she asked, but it called for no answer.

Hardy turned to check on his client. Jennifer was a statue, her teeth over her lower lip, biting. He had told her to trust him, that he believed her. He had to let her know.

Stepping back in front of Lightner, Hardy asked, "Doctor, did you ever hypnotize the defendant?"

"Yes."

"Did you tell her, under hypnosis, that she should deny having this affair with you?"

Lightner gulped some air, swallowed. "I thought it would hurt her defense. Compromise her somehow. She was having trouble enough handling what was happening to her."

"You mean the deaths of Larry and Matt?"

"Yes."

Hardy took a moment, stepped toward the jury box, gathering his thoughts, then turned again. "Because you were, in fact, having an affair with Jennifer, some of your time with her, therefore, was not related to your practice? Or her psychiatric condition?"

"That's right."

This was the point, and Lightner understood it. If Jennifer was to have a chance at life, though it cast her and Lightner in a negative light, the affair had to come out, as he would try to demonstrate.

"Did you see Jennifer, either professionally or personally, after December 28 of last year?"

"Yes, of course. I've told you. Almost every day. She was devastated by the death of her son. She blamed herself." There was another buzz, short-lived, behind them. "But Jennifer blames herself for everything."

"And yet she denies killing her husband and her son."

"That's correct."

This wasn't a question, but Powell didn't object and Villars said nothing, so Hardy took a deep breath and continued. "Doctor Lightner, did Jennifer tell you about any decisions she had reached before December 28?"

"Yes. She was leaving her husband. She called me on the telephone on Christmas Eve."

"As a friend, not as a psychiatrist."

"Yes."

Hardy began to lead him through it, slowly, with a rhythm. The fact that Larry had threatened to kill her if she left. The gun by the bed. The increasing tension in the household. He had to keep the story flowing, slipping back and forth from conjecture to fact, slowly working his way – details, details – until they got to Monday morning.