And the Sea Will Tell (58 page)

Judge King reminded the prosecutor, a shade curtly, that he had already sustained my objection.

But Enoki was undeterred. An experienced trial lawyer, he knew there is almost always another way to skin a cat. Wheeling back to the witness, he asked, “Have you become aware of any information that you know personally, or that you have been told of from other people, that would be inconsistent with Jennifer being a good person?”

I knew exactly where Enoki was going. It was an old prosecution ploy. If the witness had answered no, which was predictable, Enoki’s next question would have been automatic: “If you
had
heard or been told
that Jennifer had three times been convicted of theft
, would you still feel she was a good person?” All of Jennifer’s damaging past would lie before the jury.

Pressing my luck, perhaps, I immediately objected again. “It’s too broad, your honor. Also, it’s beyond the scope of direct.”

The court again sustained my objection. “She wasn’t called to testify that Jennifer was a good person,” Judge King admonished Enoki.

“
I
can’t help what
she
said,” Enoki retorted. “I didn’t ask that question, your honor. It came out in her answer to Mr. Weinglass’s question.”

“Let me help you
out
,” the judge exploded in a burst of impatience new and no doubt startling to this jury. Turning to Leilah Burns, the judge asked more genially: “What do you mean by ‘good person’?”

“I love her.”

“You love her? Fine.”

“I think she’s a good person,” added Burns, who was struggling to keep from being intimidated by prosecutor or judge.

“Any other questions?” the judge asked Enoki.

The distinct implication was that there had better not be. “No, your honor,” said a newly compliant Enoki.

I took a deep breath. That had been a close call for the defense. We’d felt the bullet breeze past, but it hadn’t touched a whisker.

When Leilah Burns reached the safety of the corridor, she literally fell into the arms of her husband. “I hope I did all right,” she whispered. She was crying, but softly, like someone in mourning.

Our final character witness was Lawrence Seltzer, who had known Jennifer ever since she had baby-sat for his family in Toronto twenty-five years before. Beginning in 1979, she had worked for nearly four years as a recruiter for his executive search firm in North Hollywood. The portly, graying businessman said he felt Jennifer was “incapable of violence. And I would say she’s incapable of assisting anyone in the course of violent behavior.”

“Would it be safe to say that you never observed Jennifer in a situation where her survival would have been threatened?” Schroeder asked on cross examination.

“No, I did not…. But we had seventeen people working for me at one time with a variety of personalities, and I found that Jennifer got along with them. As a matter of fact, frequently she would try to act as a peacemaker when we had stressful situations.”

When Seltzer stepped down, we had one last witness (before Jennifer) waiting in the hallway. Dr. John McCosker, director of San Francisco’s Steinhart Aquarium, was considered the Bay Area’s leading ichthyologist, or fish expert. When Elliot Enoki had refused to stipulate to the
Encyclopedia Americana
article that stated a swordfish’s bill was capable of penetrating the hull of a boat, I had gone looking for an expert who could so testify. I viewed Dr. McCosker as a very important witness, but others on the defense team were less convinced.

Right off the top of his head, McCosker had given me a couple of examples of swordfish damage to boats and assured me that the bill was quite capable of penetrating the
Sea Wind
’s inch-and-a-quarter-thick hull. (Most wooden sailboats, I learned, had only inch-thick hulls.) I had asked him to conduct some research and prepare himself for trial. Now the marine biologist waited in the corridor with an actual swordfish bill in hand.

McCosker was prepared to tell the jury about several documented incidents. In two museums, he would testify, are portions of the hulls of large whalers penetrated by swordfish; in one case, a bill actually pierced through thirteen inches of wood, and in the other, the fish rammed through twenty-two inches of wood. There was also the documented case of a swordfish punching an inch-deep hole in a copper-sheathed vessel named the
Dreadnaught
. At the moment, though, Dr. McCosker was on hold, since Len vehemently disagreed with my calling him to the stand. We took a short recess to discuss the issue in the hallway.

“I know McCosker is going to say that a swordfish bill can penetrate the hull of a boat, but,” Weinglass argued, “on cross it’ll come out this is extremely rare. That’s a very weak position.”

Of course, I didn’t plan to wait for the Government to bring this out on cross. “I’ll bring out on direct that it’s rare, but we need McCosker because without him the jury could think it’s
impossible
for a swordfish to put a hole in a boat. Impossibility is infinitely worse than extreme rarity.” But Len held his ground.

As I saw it, the whole swordfish issue reflected on Jennifer’s credibility. If the jury disbelieved this story, they would be likely to deduce what the Government wanted them to: that the hole was a bullet hole, and Jennifer’s lie was an attempt to cover up her complicity in murder.

My already prepared Q and A of the respected ichthyologist aimed to bolster Jennifer’s account with learned expertise:

Q: “I take it you’re familiar with swordfish?”

A: “Yes.”

Q: “Could you describe this fish for us?”

A: “It is a mackerel-like fish of the
xiphias gladius
species.”

Q: “How large is the fish?”

A: “Very large. Its body can equal the size of the largest sharks in the ocean.”

Q: “And is it an extremely strong fish?”

A: “Astonishingly strong.”

Q: “What about its speed?”

A: “Its powerful forked tail and a sail-like dorsal fin give it a power and speed in swimming equaled by few other oceanic animals.”

Q: “What about its bill?”

A: “The bill is a prolongation of the forepart of the skull. It turns into a horizontally flattened sword composed of vomer, ethmoid, and premaxillary bones.”

And so on…until we got into McCosker’s specific examples, from which the inference could be drawn that a swordfish could definitely have penetrated the inch-and-a-quarter-thick wooden hull of the
Sea Wind
. Granted, the incidents McCosker would cite weren’t as common as bad debt, but they
did
happen, an undeniable fact tending to corroborate Jennifer’s story.

But for some reason, Len was more determined on this point than on any other since we had become co-counsel.

Jennifer had originally agreed with me, but Len had gotten to her. “I agree with Len,” she said. “It could be dangerous.”

“
Not
calling him could be dangerous,” I shot back.

As our discussion grew increasingly animated, several members of Jennifer’s family descended upon us. All had been lobbied by my co-counsel. Nonetheless, I was holding firm until Jennifer’s fifteen-year-old nephew chimed in, urgently beseeching me not to call the fish expert. When it reached that extreme, I could only smile in resignation. Len had gracefully given in to me on several other matters during the trial. Against my better judgment, I now decided to lay down my ichthyological arms. At least, I thought, we had Larry Seibert’s swordfish-hole testimony, however arguably biased.

W
E WERE
down to our last witness, the puzzling young woman sitting at the defense table. Before she took the stand, however, I had to deal, by way of stipulation, with the repercussions of an explosive jailhouse interview Jennifer had given to
Honolulu Advertiser
reporter Bruce Benson two days after her arrest. I had learned about it only three weeks before the trial, when Enoki sent me a copy of the article.

In his October 31, 1974, front-page byline scoop, Benson quoted Jennifer making some damaging, even outrageous statements. After telling Benson “Mac’s last words to us were, ‘Make yourselves at home until we get back.’ I’m sure he didn’t expect to go out and die. But that’s what we did: We made the boat our home,” she gave this explanation for not reporting the disappearance of the Grahams to the authorities when she and Buck reached Hawaii: “They would have confiscated it—they would have taken the boat. We didn’t have anything to prove that it was ours. He didn’t really give us the boat. He just said make yourselves at home. I realize that’s a rationalization on my part,
to keep something that I love
.”

Jennifer’s statement that she made the rationalization “to
keep
something that I love” ran completely counter to what she was now saying—that she always intended to eventually return the boat to Kit Muncey. Although Shishido had already testified that Jennifer had told him she didn’t report the Grahams’ disappearance for fear the authorities would take the boat away from her, her use of the word “keep” with Benson was even stronger, and not as open to interpretation.

Moreover, prior to reading this jewel, I had worked up a cross-examination of Shishido on the issue of whether Jennifer had actually told him, as he claimed, that she “rationalized” Mac’s alleged last words, “Make yourselves at home,” to mean that she and Buck could take possession of the
Sea Wind
if the Grahams didn’t return. Such a deduction by Jennifer was, on its face, ridiculous, and Jennifer wasn’t sure she had given Shishido precisely this explanation. (Jennifer’s purported use of the word “rationalized” was particularly worrisome. If she was capable of making such a preposterously self-serving “rationalization,” would the jury assume she was capable of rationalizing away murder as well?) The Benson article virtually proved that Shishido had quoted Jennifer correctly, at least on this point.

Jennifer also repeated to Benson the lie she’d told Shishido about the
Iola
’s running aground on the reef and so forth. The article concluded with Jennifer’s disturbingly flip quote: “The
Sea Wind
wanted to go around the world again, and I wanted to go with it.”

Characteristically, Jennifer had never mentioned anything to me about this article, but she did calmly confirm, when I asked, that Benson had quoted her accurately.

“Jennifer, how in the living hell could you tell this guy Benson something so outrageous as ‘the
Sea Wind
wanted to go around the world again,’ and you wanted to go with it?” I bellowed.

“I don’t know. I don’t know. It was a crazy thing to say.” For once, she didn’t try to grin herself off the hook.

“Thanks, Jen. We really need crazy things like this in our case,” I retorted.

The prosecutor had waited until the last minute to signal his intention to call Benson as a witness to repeat the highlights of his exclusive interview.
^*
Riffling back through a newspaper clipping file so incomplete it did not include the October 31st interview, I found another article by the reporter, published the day before. In it, Benson wrote about Curt Shoemaker’s last radio contact with the Grahams and extensively quoted Bernard Leonard. I underlined one paragraph in red:
Leonard said Shoemaker was told during the last radio transmission from the Grahams that they had invited Allen and Jenkins to dinner, presumably as a going-away party, since the man and woman were to depart from Palmyra aboard the Iola the next day
. I was confident this was wrong, and something had been lost or garbled in the transmission between Shoemaker, Leonard and Benson. I didn’t believe for a moment that there had been such an invitation (even if there had, this in no way would have militated against Buck still having murdered the Grahams), but I knew that Enoki, at all costs, would try to prevent the jury from hearing that there may have been, for it directly contradicted his position that no invitation ever existed. He would have to shoot down this article while defending the accuracy of the same author’s jailhouse interview. I was soon on the phone negotiating long-distance with my courtroom opponent. We ended up agreeing that neither of us would call Benson and worked out a stipulation that I now read to the jury.

“It is stipulated that if Bruce Benson, a former reporter with the
Honolulu Advertiser
, were called as a witness, he would testify as follows: That he interviewed Jennifer Jenkins on October 31, 1974, and among other things, Miss Jenkins told him that the day after the Grahams did not return to their boat, the
Sea Wind
, she and Roy Allen found the Grahams’ dinghy about a half mile down the beach in a westerly direction from where the
Sea Wind
was anchored, and that it was overturned as if it had flipped over. Also, that since the wind was from the southeast, she and Roy Allen figured the dinghy flipped over around Paradise Island. Furthermore, that as she and Roy Allen were taking their boat and the
Sea Wind
out of the channel on Palmyra, their boat got hung up on the reef and they unloaded things from their boat onto the
Sea Wind
.”

Enoki had accepted a quid pro quo with me that markedly favored the defense. In exchange for keeping the dinner invitation out (which was of no use to the defense anyway, since I intended to tell the jury I did not believe there had been one), and including the story about the
Iola
’s going around (a lie we already had to explain away anyway, because Jennifer had repeated it to Shishido), I not only kept out the damaging and outrageous statements Jennifer had made to Benson, but I got into the stipulation the very key fact that she had told Benson she and Buck found the Zodiac on the
beach
. Also, I managed to get in that Jennifer told Benson she and “Roy” had assumed the Zodiac had flipped over
near
Paradise Island, and because of the wind from the southeast, their inferential belief that the dinghy had floated
to
where they found it on Strawn Island, thereby rebutting Bernard Leonard’s testimony on this point.