And the Sea Will Tell (56 page)

I quickly pointed out that the very language of the legal rule involved says that former testimony is introducible if the opposing side had an
opportunity
to cross-examine, as the prosecution did. Their failure to seize the opportunity was irrelevant.

Enoki wouldn’t let go. The “former testimony” exception also required a similar motive to cross-examine, he said. Since Walker’s testimony had been given in a
theft
trial, the aim of cross-examination would be different from that at this murder trial.

The prosecutor and I stood only a few feet apart, as tense and almost as physically close as boxers before the bell, as we staked out and defended our positions in front of the judge. Neither of us wanted to lose this one.

“The Advisory Notes to 804(b)(1) say that only a ‘substantial’ identity of issues is required to satisfy the requirement of a similar motive in cross-examination,” I said. “The issues
don’t
have to be identical. But actually, they are identical in this instance.”

“Yes,” the judge concurred thoughtfully, rubbing his chin. “Everybody was
talking
about theft at the theft trial, but everybody was
thinking
about murder. I think Mr. Bugliosi is right.”

The Jenkins jury would hear from Buck Walker in absentia.

After a short recess, the jury was called in and Debbie Noland drifted to the stand.

S
INCE NEARLY
everything Jennifer had said or done after the Grahams’ disappearance pointed toward her guilt, I had been on a constant, intensive search for evidence,
any
evidence, that might help prove her innocence. Early on, I had decided to put on character evidence to that effect; namely, that her caring and physically passive nature would be unlikely to produce the violent act of murder. (In a related vein, although I found a federal case that would allow such evidence,
United States
v.
Staggs
, several phone calls to forensic psychiatrists confirmed that there is no test yet devised by the psychiatric community to determine whether or not someone is capable of a violent act, or likely or not to have committed such an act.)

Character evidence is the most
indirect
type of evidence that can be offered at a criminal trial, since none of it relates to the actual circumstances of the crime charged. The defense of “good character” in a criminal case dates back to the time of Charles II in the seventeenth century, but it is not a frequent defense at a criminal trial, and if handled clumsily, can be perceived by the jury as indicative of a weak case.

Jennifer had given me the names, addresses, and phone numbers of friends who could testify to her nonviolent character, and I was eventually able to reach and interview them all.

Len agreed that a character defense was a good idea in the abstract, but feared that the Government, in rebuttal, might be able to introduce all of Jennifer’s actions that showed
bad
character, including her theft conviction of the
Sea Wind
. I remembered from my days in the DA’s office, however, that the prosecution would be restricted under the law to presenting evidence bearing only on that particular character trait about which the defense witness testified. In this case, therefore, the Government could only present evidence that Jennifer
was
a violent person. As it turned out, Judge King gave the impression that he shared Len’s interpretation. But after I cited my supporting cases (
Mitchelson
v.
United States; United States
v.
Curtis
), Enoki himself acknowledged that my position was consistent with the law.

The main caveat I had with a character defense was the lurking danger that the Government might be able to find some evidence in Jennifer’s past indicating a violent nature. Such a revelation would not merely cancel out the testimony of our entire platoon of character witnesses. If someone, for instance, had seen Jennifer throw a broken bottle at someone’s head, this would be specific, affirmative evidence that would, understandably, weigh more heavily than all of our generalized character testimony. I warned Jennifer of the risks involved in a character defense and asked her repeatedly if she was absolutely sure there was no violent behavior the Government would be able to dredge up from her past. Anything at all, even slapping someone hard on the face, even a
threat
to be violent. Jennifer placidly assured me there was nothing.

On the phone, in writing, and finally in person, I reminded each of our character witnesses to confine their testimony to the issue of Jennifer’s being a nonviolent person. If they inadvertently strayed from this narrow path and testified, for instance, that Jennifer was a “nice” or “good” or “honest” person, or one with “high morals,” since these are general terms, virtually anything negative about Jennifer would be allowed in rebuttal. Thus, the door would swing wide open for the two petty-theft convictions, the conviction for the theft of the
Sea Wind
, and perhaps even the marijuana conviction. Fully aware, then, of the dangers inherent in a character defense, I nonetheless felt, in view of all of the other factors, that taking the risk was advisable.

With Debbie Noland, I began not with precise character-defense questions but by eliciting testimony from her that corroborated some very important points Jennifer would soon testify to. Noland alluded to certain “problems” she saw in the relationship between Jennifer and Buck, and I asked for illustrations.

“For one thing,” she said, “Buck had a thing for weapons. Guns, mostly. Jennifer just didn’t want the guns in the house. She didn’t want any part of that.”

“Would they argue about it?”

“Yes. They argued often about the same thing, the guns.”

“Was she able to get him to remove the guns from the house?”

“Yes, the guns were taken out of the house.”

I prodded her to go on.

“They were…totally different people.”

“In what ways?”

“Jennifer was peaceful, easygoing. She loved nature. She went to the beach a lot. She loved animals. Buck stayed in the house most of the time. And he had a firecracker personality. He was nice for one minute, and then he would explode on the spot.”

When I asked for examples, continuing with my “prosecution” of Buck, she said that if Buck and Jennifer were having a disagreement, Buck might get so angry that “he would just run outside and throw rocks at her van.”

“Was Buck kind of domineering over Jennifer?”

Debbie paused, as she had earlier that morning at the hotel, but, to my relief, soon answered clearly, “Yes.”

“Would you say you had a close relationship with Jennifer during this period of time?” I asked.

“Yes. I…I became very close to her,” she said demurely.

“Based on your knowledge of Jennifer and your association with her, do you have an opinion as to whether she’s a violent or nonviolent person?”

“Definitely a nonviolent person. Loving to animals, to people, mothering everybody. She’s so giving.”

Because of the likelihood of surprise and consumption of time, most courts permit character testimony relating to specific acts only on cross-examination, not direct. However, this was a gray area of the law (“not
generally permissible
” per Advisory Notes to Rule 405), and I intended to make an effort to slip in such specific testimony from Noland on my direct.

“What caused you to believe that she was nonviolent?”

“Are we getting into specific acts now?” an alert Judge King asked. “I thought you weren’t supposed to get into that.”

I didn’t respond, but swiftly took another tack with the witness. “Did she
speak
about nonviolence?”

“Yes, she—”

Enoki cut her off. “I’m not sure what the answer is going to be, but it could call for a statement about specific acts.”

Court: “Yes. I thought that what you were getting into was not permissible under the rule.”

“Well,” I said, “I think the bald declaration of the nonviolence certainly is helpful, but what caused the witness to form that opinion I think is important.”

When I stubbornly tried, yet a third time, to get into specific acts, Judge King said, with studied calm: “Mr. Bugliosi, we’re going to have a little problem with this. Because you and I both know the rule. It’s almost a formula. ‘Do you know the defendant?’ ‘Yes.’ ‘Do you have an opinion?’ ‘Yes.’ ‘What is that opinion?’ I’ll sustain the objection.”

A remarkably restrained Judge King was continuing to keep his tongue in check before the jury. I knew he would have roared at Buck Walker’s attorneys—and perhaps at me, if I hadn’t confronted him earlier in chambers—for blatantly trying to dance around a ruling of his two consecutive times.

Not once throughout the trial had Judge King indulged in a tantrum or in any other way belittled me or Len in open court. He had shown irritation with me a few times outside the presence of the jury, though he never seemed upset with Len. In and out of court, my co-counsel had a personality that seldom rubbed people the wrong way. It was sometimes difficult to recall that this nice-guy Weinglass had battled it out in court with crusty old Judge Julius Hoffman in the historic Chicago Seven conspiracy trial while a nation watched in fascination or partisan anger.

In any event, with or without specific acts, Noland’s testimony was decidedly helpful. The judge just wouldn’t let me put the icing on the cake.

On cross-examination, Enoki asked rhetorically, playing more to the twelve jurors than to the witness, “It’s your opinion then that in spite of her association with Mr. Walker and knowing the kind of person he was, Jennifer was still capable of being a nonviolent person?”

“Definitely.” Debbie Noland’s tone was pleasingly decisive.

“I gather she also demonstrated,” Enoki went on, “as part of that character, a capacity to tolerate violence in other people.”

The judge sustained my objection, deeming Enoki’s question “a little philosophical.”

Our next witness, Rick Schulze, was a lawyer from the mainland who, within a year after moving to Honolulu in 1963, had made partner in the firm of Bill Quinn, a popular ex-governor. Schulze had left in 1970 to put up his shingle in tiny Kamuela—population 2,500—on the Big Island.

Schulze entered the courtroom attired in the colorful casual dress I’d come to expect of Hawaii residents—a lightweight summer sport coat, white open-weave shirt with playful orange tie, navy-blue slacks, and scuffed high-top desert shoes.

I first brought out that Schulze had served four years as a district judge in Honolulu and had been elected to the state’s 1968 constitutional convention, chairing the committee charged with reapportioning political districts.

He recalled meeting Jennifer in 1970, when she was staying at a mutual friend’s house.

“After we met, I saw Jennifer weekly throughout 1970. In December of that year, I married my second wife, and Jennifer was among a few friends who came and stayed at our house for the week before the wedding to help us with all the preparations. After that, Jennifer would visit us once a month or so, and my wife and I would visit her at the cabin in Mountain View.”

“When you were with Jennifer, did you have conversations with her, philosophical conversations?” I asked.

“Yes, we talked in deep ways, conversations about very profound things. About how we feel about life. Jennifer and I had a very close relationship.”

“How would you describe Jennifer to the jury?”

At this point, as if on cue, Schulze turned his head toward the jury and made eye contact with several of the people who would decide her fate. “Jennifer is a very unusual person,” he said earnestly. “She is a very giving person. She was always concerned with helping other people. She didn’t pay a lot of attention to her own problems. She is a very sound, reasonable person.”

“Did you ever have an argument with Jennifer?” I asked, for a reason that would become clear. I was successfully skirting Judge King’s “formula.”

“Well, I don’t know if it…was an argument. But there was an occasion when Jennifer and I certainly had a meeting of wills.”

“Would you describe that to the jury?”

“Jennifer lived on the other side of the island, maybe sixty or seventy miles from us. I had just built a new house—it would have been in 1973—and she came to visit, bringing her little dog, Puffer. Jennifer is very, very close to her dog. Puffer went everywhere with Jennifer. We had a long discussion over whether Puffer could come into our house to sleep with Jennifer that night. It seems silly now. But I never allowed my dog to come in the house, and I thought he would feel really bad if her dog came into the house. So, I wouldn’t let her bring Puffer in. Jennifer felt that she couldn’t possibly leave Puffer outside overnight.”

“What eventually happened?” I asked.

“What happened was that Jennifer finally cried, and went out and slept in the car with her dog.”

“Overnight?”

“Overnight.”

I felt that Jennifer’s handling of the situation was surely revealing.

I next asked Schulze if he was aware of any of the men in Jennifer’s life, and he said he’d met two of her boyfriends.

“Did these two men fall into a pattern?”

“Yes, they did.”

“In what way?”

“Contrary to Jennifer’s nature, her boyfriends tended to be scruffy, coarse men. Crude—crude men.”

“Did you find this to be incompatible with her nature?”

“On the surface, you would think so. But underneath, Jennifer is a helper of people. She thought she could save these fellows.”

“Give them some type of spiritual guidance, in other words?”

“She was very much a spiritual counselor, yes.”

“What type of person was Buck Walker?” I asked, continuing my prosecution of him.