And the Sea Will Tell (55 page)

“Did you see the patch on the outside of the hull?” asked Weinglass.

“Yes, yes. But I also saw a part of the fish sticking through the hull from the inside.”

“And could you describe for us what that part of the fish looked like?”

“It looked like the mangled-up bill of a swordfish.”

“About how long was it?”

“It was about six or eight inches long. What was left of it.”

Now on to the second pertinent topic.

“In the course of your being on the
Sea Wind
that day, did you have an occasion to ask Buck how he got the boat?” Weinglass asked.

“Yes, I did. He told me he had won the boat playing chess with the previous owner in a series of games,” Seibert answered.

“Now, was Jennifer there when he told you that?”

“Well, she wasn’t sitting at the table with us, but she was somewhere around.”

“Did you sometime after that ask Jennifer if the story that Buck had related to you was true?”

“Yes. She said that it had not been true. That he hadn’t gambled with the guy.”

On cross-examination, Schroeder tried to show that Seibert, being a friend of Jennifer’s, might lie for her.

“You were good friends, were you not?”

“Well, we were fairly good friends.”

Schroeder showed Seibert a photograph of him on board the
Iola
when the vessel was finally launched successfully.

“You have a bottle of champagne or wine in your hand. Is that correct?”

“Yes.”

There was a slight pause as Schroeder changed key.

“The swordfish bill is not something that you simply stumbled across. They said, ‘Larry, we’ve got something we want to show you.’ Would that be correct?”

“Something like that, yes.”

“And they took you and showed you this bill.”

“Right.”

Now the Government lawyer turned his attention to the second important part of Seibert’s testimony.

“Isn’t it a fact, Mr. Seibert, that Buck and Jennifer
both
told you that they won the boat?”

“Only Buck told me.”

“Do you remember being interviewed by FBI agents Richard Bramley and Roy George Hamilton on October 31, 1974?”

“Yes.”

“And during this interview, you signed a statement, did you not?”

“Yes.”

“And did you not, during that statement, say, ‘
They
said that after
they
had won the boat, they departed the island on the boat they won, and the previous owners of the boat departed in the
Iola
for Fanning Island’? Did you say that to the FBI?”

“I might have used the word ‘they’ at that time, but—”

“Would you like to see your statement?” Schroeder asked pointedly.

“I saw the statement. I know what it says. But I’m not very good at always making sure that I’m using the proper pronoun or whatever you call it. And the word ‘they’ should have been ‘Buck.’”

“So, in October 1974, you said ‘they.’”

“Yes, I said ‘they.’”

“And today, you’re saying ‘Buck.’”

“I have always said ‘Buck’ except for that one time that I used the improper pronoun.”

(Schroeder should have known that the jury might think he had intentionally misled them if it was brought out on re-direct, as it was, that later in this very same interview Seibert had clearly said, “
Roy Allen
related the following story to me—that
he
won the boat gambling, playing chess with the previous owner who
he
referred to as being a wealthy millionaire who did not worry about losing the boat or approximately a thousand dollars in cash that
Roy also
won gambling.”)

Schroeder elicited from Seibert that it was only after Jennifer’s arrest that she had told him, in Halawa Jail, that Buck had lied about how they acquired the
Sea Wind
.

Schroeder had one more line of questions to challenge Seibert’s credibility. “You went to the Unites States passport office with Buck Walker, did you not, and you signed an affidavit that he was Roy A. Allen?”

“Yes, I did.”

“Nothing further, your honor.”

B
Y THAT
Friday, February 14, the advancing storm had finally arrived in full force, dumping four inches of rain on the San Francisco Bay Area on Valentine’s Day. (Non-Californians may forget that much of the state is susceptible to severe damage from rains that, elsewhere, would cause little but traffic jams and bad jokes.)

“Mother Nature has interfered with us,” Judge King explained that morning as we gathered in his courtroom at 9:30
A.M.
“Juror Nelson is doing fine, but he can’t get here. Highway 101 is wiped out at Petaluma, and so is another road below it. He’s being evacuated from his home and he’s moving to a friend’s house. Mrs. Rico can’t get here either. She got as far as Petaluma, and then had to go back home. There are two other jurors we haven’t even heard from.”

Before adjourning for the three-day President’s Day weekend, Judge King issued a novel order. “The paper says several days more of rain, so I hereby order that it cease raining by Tuesday morning. Let’s see how that works.” He smiled roguishly and left the bench.

Heading out of the courtroom, Len, Jennifer, and the prosecutors reached the door at the same moment. “Since we’re short jurors, maybe the judge should change his ruling on Rule 29 and dismiss the last remaining count,” Weinglass joked.

Enoki, smiling narrowly, didn’t miss a beat. “She can always plead.”

“I’ll plead guilty to jaywalking,” Jennifer chirped, adopting dry humor like one of the courthouse crowd. “Really, Elliot, you find something I’m guilty of and I’ll plead.”

The prosecutor stiffened as he spoke in a resonant baritone. “I know lots of things you’re guilty of, Jennifer.”

Unfazed, Len was still holding the door open, keeping his kind but crooked smile in place, as the tableau froze.

Enoki headed for the eighteenth floor, where he had set up shop in an office borrowed from the U.S. Attorney. He would, no doubt, spend most of the weekend there, preparing for the prosecution’s most important cross-examination of the trial. Walt Schroeder and Hal Marshall trailed like worker ants. Schroeder gripped a briefcase in one hand, and the bulky FBI agent carried, as he did at the end of each day, the carton containing Muff’s bones. The judge’s clerk, frankly squeamish about them, had asked him to be in charge of the grisly evidence. “No problem,” Hal had said. “A few bones don’t bother me.” As the friendly agent was prone to do, he told the clerk a story to illustrate the point. “My daddy was a sheriff in Texas,” he said in his deep drawl. “Down around the Gulf. One time he had to fish out a big old swelled-up drowning victim. He wrapped the body in a blanket he always kept in the backseat of the car. That Sunday, we used that very same blanket for a little family picnic. No problem.” When the young clerk looked stricken—no doubt the desired effect—her tormentor grinned broadly and added innocently, “Mind you, the body wasn’t still in the blanket.”

L
EN AND
I spent Saturday working at the hotel. We ventured out on Sunday, driving across the Bay bridge and continuing east for another thirty miles to Lafayette, the leafy suburb where Ted and his family lived.

Jennifer, attired in sweat clothes, invited us into the spacious family room. The three of us discussed some of our upcoming witnesses and the points we needed to make with each. Jennifer’s testimony was very much on my mind, of course, and I took the opportunity to run her through several portions of newly designed Q and A. As always, when we zeroed in on areas vital to her defense, my summation was not far from my thoughts. As it turned out, Jennifer was also thinking about my final argument.

“Vince, are you going to argue my innocence?” she asked out of the blue. There was an edge to her voice.

“You’ve got to be kidding, Jenny. Of course I am.”

“I don’t know. Len doesn’t think you should. That you should only argue reasonable doubt.” She looked directly at Len, apparently to take over the argument. Evidently, he’d been working on Jennifer. His hope, undoubtedly, was that with her support, I would reconsider, even though I thought I’d made it very clear to him why I needed to argue
both
.

After Len outlined—once again—his legalistic reasons for my arguing only reasonable doubt, I smiled derisively at my client. “Jennifer, you
do
want me to argue that you’re innocent, don’t you?” I said sarcastically.

“Well, I’d like to see what you’re going to say,” she countered.

“Ordinarily, Jennifer, I would show my argument to you. But not now. You’re only going to hear it, not see it,” I said sharply. “I never thought I’d see the day,” I added, raising my voice, “when I’d have to get the goddamn approval of my client to argue that she is innocent.”

Jennifer, blinking wildly, said nothing.

“Let’s go, Len,” I said as I stalked to the door, not wanting to spend any more time in the presence of our client.

In the car heading back to the city, Len and I discussed the issue more rationally. By the time we got back to the hotel, we had buried once and for all the innocence vs. reasonable doubt matter. But working on the case into the early-morning hours, I bristled whenever I thought of Jennifer’s conduct. I probably should have been more understanding. She was simply a lay person totally unschooled in the law who was consistently influenced in her thoughts by one of her lawyers, a fine lawyer at that.

The next morning, my bedside phone rang early.

It was an apologetic Jennifer. “Obviously, I have total confidence in how you’re going to argue the case, Vince. I was out of line last night. I’m sorry.”

B
Y EARLY
Tuesday morning, the judge’s order had worked. The storm had ended, and the day was bright and clear.

We were set to put our character witnesses on the stand. At the low-rent hotel near the courthouse where we had put up all of these witnesses, and with Jennifer present, I conducted my final interview with Deborah Noland, an old friend of hers who had moved to Hawaii in 1972. We sat down together a few minutes after seven in the morning.

A petite woman in her thirties, Noland, her long, dark hair gathered in a bun, wore granny glasses and sandals. A mother of two, she worked on the Big Island for a counseling program that helped abused women.

In 1973—then “a kid of nineteen and pregnant”—Debbie and her boyfriend, unabashed hippies in search of an alternate lifestyle, had arrived on the Big Island. Mutual friends had written Buck and Jennifer’s names on a matchbook, and the couples ended up living together for a time on the two-acre parcel of rugged forest-land where Buck had helped his father build his cabin.

Although most of this background information would not come out in her testimony, I had accumulated pages of notes from my several telephone interviews with Noland. “I
liked
Jenny right away,” she told me. “She’s real easygoing—a loving person. She took good care of me, like a big sister or even a mother. She was a vegetarian at the time and she made sure I was eating right for my baby’s sake. She always kept busy around the place. Buck, I remember, spent a lot of time in bed, reading. One title sticks out in my mind:
The Master Game
. It was about getting your mind together. He read it over and over. He liked self-help and Zen books, too. And murder novels.” Eventually, she warmed up to the quieter Buck, too, despite some disturbing tendencies. “When he got mad, he would go out and shoot his gun. He never beat Jennifer, but later, after I worked with abused women, I realized that Buck had psychologically abused Jennifer and taken advantage of her kindness.”

In my final interview with Debbie that morning, I asked a question Judge King would probably sustain an objection to, but I needed to know the answer in case I decided to try to elicit it.

“Debbie, you witnessed the relationship between Jennifer and Buck. Do you think Buck had enough control over Jennifer to get her to go along with murder?”

Noland didn’t answer right away. In fact, her silence gradually became alarming.

I interrupted the long hiatus with a nervous chuckle. “God, that pause could bury us, Debbie. Don’t worry. I won’t be asking you that question.”

But Noland had completed her ruminations. “Jennifer is not that kind of person,” she said firmly. “She couldn’t kill anyone.”

Later, Jennifer explained that people in Hawaii speak and react slowly because they are “laid-back. They just aren’t as quick in their conversations as most of us are,” she said.

Native son Sam King, with his whiplash tongue, would have loved that gloss.

Before the jurors took their seats that morning, I advised Judge King that I wanted to introduce Buck Walker’s 1975 theft trial testimony about his activities on the all-important day of August 30, 1974. Because of Walker’s unavailability at this trial, I believed his testimony to be admissible under the “former testimony” exception to the hearsay rule. “The only hurdle that has to be negotiated, as I see it, is whether the testimony is relevant,” I told the court.

It
was
relevant, I went on, because it supported Jennifer’s testimony “that she was told by Buck Walker about the dinner invitation; i.e., she’s not saying that the dinner invitation was made by the Grahams, only that Buck
told her
it was. This previous testimony of Walker’s contravenes the prosecution’s position that the dinner invitation is a story that was concocted by both Miss Jenkins and Buck Walker.”

Enoki, determined to keep out Walker’s testimony, countered that the prosecutor in the boat-theft case did not cross-examine Walker about the issue of his activities on August 30, 1974; therefore, it did not meet the cross-examination requirement of the former testimony exception rule.