Judge Lipsitt said, “Good morning, ladies and gentlemen. The court has been informed that the jury has reached a verdict. Would the foreperson hand the verdict forms to the clerk, please.”
The clerk took the forms from the woman selected and said, “In the case of The Commonwealth Versus Jay C. Smith, number 1677, the charge of murder, how do you find the defendant?”
“Guilty. Murder in the first degree,” she said.
“In the case of The Commonwealth Versus Jay C. Smith, number 1677a, the charge of murder, how do you find the defendant?”
“Guilty, murder in the first degree,” she said.
“In the case of The Commonwealth Versus Jay C. Smith, number 1677b, the charge of murder, how do you find the defendant?”
“Guilty, murder in the first degree,” she said.
Costopoulos requested a jury poll and the courtroom heard “Guilty, murder in the first degree” thirty-three more times. Jay Smith didn’t so much as twitch.
When they were finished, the clerk said, “Will you please rise. Hearken to your verdict as the court has it recorded. In The Commonwealth Versus Jay C. Smith, the charge of murder, you say guilty in the first degree. So say you all?”
“We do,” they said.
Pete Hunsberger touched his wife’s arm as each count was uttered. Pete and Dorothy Hunsberger heard two additional counts of murder that no one else heard.
The lawyers immediately had a conversation at the sidebar where Bill Costopoulos reminded Judge Lipsitt that Judge Garb had precluded the penalty phase from going to the jury in the case of William Bradfield. He asked the court to adopt the same position.
Guida argued that in the Bradfield case Judge Garb had reasoned that William Bradfield was not convicted of the actual killings, but was an accomplice. Nor had the prosecution proven to the judge’s satisfaction that he had contracted the murder. In this case, Guida argued, Jay Smith was the actual murderer.
Judge Lipsitt quickly denied the request of the defense and the penalty phase was ordered to begin.
“Members of the jury,” the judge said, “you have now found this defendant guilty of murder in the first degree in connection with three cases. Your verdicts have been recorded. We are now going to hold a sentencing hearing during which counsel may present additional evidence and argument.
“You will decide whether the defendant is to be sentenced to death or life imprisonment. Whether you sentence the defendant to death or life imprisonment will depend upon what, if any, aggravating or mitigating circumstances you found present in this case.”
When the judge had finished, the moment had at last arrived. Jay Smith stood and walked tall and erect. He took the stand and sat easily. He was a bit more pale and gaunt than he had been, but at the moment looked to be in far better emotional condition than his lawyer. His eyes had all the expression of a pair of hubcaps.
“Mister Smith, please state your full name for the record,” Costopoulos began.
“My name is Jay Charles Smith.”
“Your age, sir.”
“I will be fifty-eight on June fifth of this year.”
“Where were you born?”
“I was actually born in Ridley Park, but lived all my life in Chester, Pennsylvania.”
“Do you have any brothers or sisters?”
“I have three brothers living, one brother dead, and one sister.”
“For how many years were you married before your wife passed away?”
“Twenty-eight years.”
“When did your wife pass away?”
“On August seventh, 1979.”
“From the date of your imprisonment, what have you done in the institutional environment in which you live?”
“Well, I’ve been involved in a large number of activities. I don’t know whether it was you or someone else who mentioned the jailhouse lawyer. I was known more as a jailhouse guidance counselor because a great amount of my activity was helping individuals with their personal letters and personal problems.
“I handled fifteen Vietnam veterans, the Agent Orange cases, to get these individuals their medical examinations and get them their proper discharges. I worked with a large number of Hispanics who couldn’t speak English.
“I taught a class for inmates called ‘How to Get a Job,’ showing them how to make out applications and construct résumés and keep files.
“I worked a lot in the church activities, not that I’m an expert on it. I was more of an organizer. I was president of the God Squad for three years. When there was no minister I handled all the church activity at the prison. I would bring in ministers and set up the ceremony. I handled the Bible study.
“I did my regular prison job. I handled the dayroom, handled all the books and papers, kept it clean.
“I’ve worked for over four years on a criminal justice dictionary. That was my main writing activity.”
“How does the request for two back issues of Penthouse tie in with that?”
“I’ve found that Black’s Law Dictionary and Ballentine’s do not cover criminal justice definitions very well. I had inmates bring up words that they know, then I went through about fifty or sixty sociology and criminology textbooks and began writing definitions in the criminal justice dictionary.
“There’s nothing in Black’s Law Dictionary about the Muslims. In prison the Black Muslims and the Muslim faith have grown tremendously. You have a great deal of trouble in the criminal justice system finding out about corrections, especially halfway houses, furloughs, leaves of absence. Most lawyers do not know very much about corrections.”
“It’s in that category, corrections …”
“The Penthouse. Let me answer how I got to the Penthouse. I found over the past five or six years a number of crimes involving battered wives and child abuse.
“If you look at those issues, you’ll find that they have Yoko and John Lennon in there. John Lennon beat up Yoko. I was considering her as an example of a battered wife because John Lennon is known throughout the world.
“Also John Lennon in the article kicked his child, Sean. Yoko thought he was going to kill him. This was a child abuse item.”
“Did your having possession of those two Penthouse magazines have anything to do with Charles Montione?”
“Nothing whatever.”
He looked as banal as Adolf Eichmann. He’d just been convicted of murdering a woman and two children, and he was now describing to the jury how he was writing dictionary definitions of child abuse, as emotional as a grapefruit.
Then he went on to describe how he’d helped Charles Montione and Raymond Martray, who’d betrayed him with their false testimony. And just so he didn’t disappoint anyone by failing to offer a sexual innuendo, he gave the jury a news flash: one of the witnesses against him was homosexual, even though Dr. Jay had always tried to “talk him out of it.”
Bill Costopoulos asked, “Mister Smith, since your arrest for the death of Susan Reinert and the disappearance of her children what have your living conditions been?”
“I’ve been kept in the hole ever since.”
“Explain to the jury what that means.”
“I’m not allowed any communication or calls. I’m not allowed to visit with my relatives except one time every two weeks when they’re behind a screen. I get no religious activity whatever. It’s the only place in the United States where you’re not permitted to have any church services.”
“Did you want to testify before this jury during this trial?”
“Yes. It was my feeling to testify because I felt the jury was entitled to hear my side. You said if I didn’t testify it couldn’t work against me. I mentioned to you I didn’t think they could bring up the previous conviciton. That shows you how much of a jailhouse lawyer I am.”