And the Sea Will Tell (69 page)

“Yes.”

“Did you also testify you found the gas tank of the Zodiac
on the beach
?”

“Yes.”

“Jennifer, are you familiar with the fact that there are two high tides and two low tides approximately every twenty-four hours?”

“Yes.”

The crucial significance of my next question wouldn’t be apparent until my summation: “Are you also aware that of the two high tides, one is a high high tide where the water goes the farthest up on the beach, and one is a low high tide where the water does not go quite as far up?”

“Yes.”

And now, finally, I could ask Jennifer about the apricot brandy.

“You testified that when you and Buck arrived at the
Sea Wind
on the evening of August 30, 1974, among other things, apricot brandy and vodka were set out. Is that correct?”

“Yes.”

“Was vodka one of Buck’s favorite drinks?”

“Yes.”

“Was apricot brandy one of your favorite drinks?”

“Yes.”

“You had had drinks on the
Sea Wind
prior to the 30th of August with Mac and Muff?”

“Yes.”

“Had you ever had apricot brandy with them?”

“No.”

“Had you ever communicated to them, as far as you can recall, that apricot brandy was one of your favorite drinks?”

“No,” she said, “I don’t recall ever mentioning that to them.”

“When you found apricot brandy set out there in the cabin, and also vodka, did it occur to you at that time that it may have been Buck as opposed to the Grahams who set those alcoholic beverages out there for you?”

“No.”

“Has it occurred to you since?”

Enoki jumped to his feet. “I will object to that as irrelevant, your honor.”

Court: “Overruled.”

“Yes,” Jennifer answered sadly.

“When did it occur to you?” I asked.

Enoki objected again and was again overruled.

“When you were interviewing me and brought it to my attention,” Jennifer answered.

Court: “How long ago?”

“Oh, God,” Jennifer shrugged. “I don’t know.”

Court: “A year ago?”

“A few years ago.”

Court: “Two years ago?”

“Two or three years ago,” she said.

Court: “When Mr. Bugliosi was first interviewing you?”

“Yes.”

“You did not volunteer to me when I was interviewing you that apricot brandy happened to be one of your favorite drinks?” I asked.

“No.”

“I asked you whether it was. Is that correct?”

“Yes.”

“Jennifer, going on, there has been some testimony about your attorneys, during the 1975 theft trial, giving you certain advice. Has either Mr. Weinglass or I told you or implied to you in any way that you should not tell the truth at
this
trial?”

“No, not at all. Both you and Mr. Weinglass have always indicated that you wanted me to tell the whole truth.”

“Absent our telling you this, Jennifer, what was your state of mind with respect to testifying truthfully at this trial?”

“I was always determined to tell the truth at this trial.”

“No further questions,” I said.

Judge King cleared his throat noisily. “I have a few,” he said.

I wasn’t happy at that prospect. When a judge starts asking questions of a defendant, the jury might infer that he doesn’t believe the defendant.

“You didn’t find any log on the
Sea Wind
?” the judge asked.

“I don’t remember at this point either finding one or not finding one,” Jennifer said. “I could have come across a log of the
Sea Wind
, and it probably wouldn’t have meant much to me.”

Court: “You don’t recall?”

“Right.”

Court: “Somebody said you came over to the
Sea Wind
with a cake on August 28th. Did that happen or didn’t it happen?”

“It could have easily happened and I didn’t put it in my diary. Mac had loaned me the Fanning chart and I could have easily baked him a cake as a thank-you for that and taken it over. It’s not in my diary and I don’t remember.”

Court: “Your diary mentions the Fanning chart?”

“It does mention the Fanning chart.”

Court: “What day does it mention it?”

“I think it was the 26th. It says [reading], ‘Mac brought by the Fanning chart’ on August 26th.”

Disturbingly, Judge King returned once again to August 28: “You have no clear memory of going over there on the 28th?”

I didn’t like the obvious hint of disbelief in the judge’s voice.

Jennifer shook her head. “I really tried to remember.”

Judge King had no further questions. Finally, Jennifer’s ordeal was over. Altogether, she had been on the witness stand for just short of three days.

Judge King waited until virtually the end of the evidence in the case to finally rule in my favor on my motion to introduce into the record Buck Walker prior testimony (at his theft trial) concerning August 30, 1974. This ruling would enable me to draw a telling inference in my summation. After I read to the jury that part of Buck’s testimony (set forth infra), the Government called one familiar face in rebuttal. When FBI Agent Shishido took the stand, Walt Schroeder asked him to describe the defendant’s demeanor during his interview of her on October 29, 1974.

“I would say she was very confident and somewhat matter-of-fact in relating the story as to what happened at Palmyra Island.”

“And during that interview did she, at any time, cry when talking about the Grahams’ disappearance?”

“No, sir.”

“Did she cry during any other part of the interview?”

“No, sir.”

“Did she, at any time, demonstrate any sorrow, sadness, or any similar emotion when talking about the Grahams?”

“No, sir.”

“Did she show any emotion whatsoever during any part of the interview?”

“No, sir.”

“Nothing further,” said Schroeder.

“Mr. Shishido,” I asked on cross-examination, “do you think the observations you have just made on the witness stand are in any way relevant?”

“Do I think they are relevant? Yes.”

“Did you therefore put any of these observations you say you had about Jennifer Jenkins into your report, your 302 report?”

Cal Shishido set his mouth in a tight line.

“No, sir.”

When Shishido was dismissed, Enoki asked for a moment. He and Schroeder had a quick whispered conference.

“The prosecution rests,” Enoki said.

“The defense rests,” I echoed.

T
HE JURORS DEPARTED FOR
the weekend, and the lawyers gathered in chambers for the final round in a battle I’d begun with Judge King early on.

Judges customarily put a time limit on lawyers in summation, often as short as one or two hours. They give no valid reason for this limitation. None exists. When pressed, they’ll generally contend that whatever has to be said can be said in the time allotted and add that a long-winded lawyer bores the jury and ends up hurting his case. Too many lawyers routinely accept these limitations. But since I consider summation decisively important and invest a great amount of time and effort in its preparation, I normally need considerably more time than most judges initially offer.

Just before Jennifer’s trial began, Judge King had agreed to allow me as much time as I wanted in summation, although he had previously indicated that two hours for each side seemed appropriate. But a few days before summation was to begin, he told me in chambers that my limit would be five hours. When I reminded him of his previous commitment, he ignored me, saying crisply, “Five hours.” I told him I needed at least six, maybe seven hours, adding that I thought the case was going to be won or lost on final summation and that I didn’t want to shortchange my client. I pointed out that since there were so very few known facts in the case, it would all finally come down to argument, to drawing subtle inferences. “It’s going to be very difficult to persuade the jury to let Jennifer walk out of court,” I argued. “There are just too many things against her. A considerable number of arguments and inferences are going to have to be made, and to make all of them, and in the right way, I need extra time. We already know what one weak argument got her. She was convicted of the theft.” But Judge King didn’t budge.

“Judge,” I persisted, “if I determine, as Jennifer’s lawyer, that I need extra time to make some important arguments and you refuse to give me that time, that’s denying Jennifer her right to a fair trial.”

“So take it up on appeal,” he snapped.

“I’m not interested in having the courts upstairs reverse a conviction. I’m only interested in a verdict of not guilty.”

“And I’m only interested in moving this trial along. Five hours is more than enough time,” the judge said firmly.

I was thoroughly disgusted. All we were talking about was an extra hour or so in a very important murder case that had already been around for eleven years. Moreover, if I decided that the extra time was necessary to adequately represent my client’s cause, what right did the judge have to question my judgment? I responded testily, “If I make the assumption that your appointment as a judge was merited, why don’t you make the assumption that if I decide I need extra time, I know what I’m talking about?”

“Mr. Bugliosi…” Judge King said, bristling, but he did not continue his thought.

I had more to say, of course. I quoted cases from around the turn of the century, when long summations were common (short time limitations are so accepted today I couldn’t find any modern appellate cases dealing with the issue in a substantive way). A 1905 case: “How can the court know, in hours and minutes, how long the argument ought to be? As argument progresses, he may interdict idle repetition, but while counsel speaks to the point, how can the court forbear to be patient, and hear what is said?”
^*

But Judge King again repeated the five-hour limitation. I had only one card left, one I felt forced to use, though it was embarrassing to me. In an effort to convince Judge King that my long arguments weren’t two hours of substance and the rest just adornment, I handed him an issue of
Courtwatchers’ Newsletter
, a paper for Chicago trial buffs. The editor, commenting upon an eight-hour summation of mine to the jury (the judge had originally set a two-hour limit), said, “Mr. Bugliosi’s performance today was the finest I have ever seen, and I have been a court watcher in Chicago for twenty-one years.”

“I don’t give a damn what someone says about you in Chicago or some judge in 1893 or 1905 has to say,” Judge King barked. “You’ll have five hours. Not a minute more.”

I informed Judge King that although I had had disputes with judges on the issue in the past, in the end, no judge had ever restricted my time in summation.

“Baloney!” he bellowed.

“Are you calling me a liar, judge?”

“Mr. Bugliosi,” he said, visibly controlling himself, “I’ve already ruled.”

I had no doubt that Judge King was finally getting even, in his way, for what he perceived as my disrespectful confrontation with him at the beginning of the trial. He had come a long way from the day he had jested that the appellate courts wouldn’t dare reverse a conviction of mine, but he had held his tongue before the jury, and up until now, that was all that mattered.

I now wondered if I would end up paying a higher price in the long run for my challenge to Judge King’s authority.

M
ONDAY
M
ORNING
, F
EBRUARY
23, 1986

T
HE
G
OVERNMENT
would open this morning with its summation, and I would follow after lunch. If by the end of the day I was not at the midway point, my plan was to have Jennifer personally intervene with the judge. On the trial record, she would state that she wanted me to make every single argument on her behalf that I felt was needed. Most judges would probably not deny such a request from a defendant, but I was not convinced King would yield to Jennifer’s plea. Over the weekend I had reluctantly excised about an hour’s worth of summation. While doing so, I uttered more than one profanity (although I had to concede that other than the time limitation on summation, King had handled the trial well).

What if, despite my cuts, I ran past five hours and Judge King strictly held me to the five-hour limitation? Should I continue to talk, forcing the judge to look like a fool in front of the jury for insisting that I cease talking when it was obvious that I was building logically to my peroration?

When the jurors entered the box shortly after 9:30
A.M.
, Elliot Enoki, his left hand in his suit coat pocket and a pencil in his right hand, was already at the podium, primed to make his opening argument for the Government.

“May I proceed?” Enoki asked.

“You may,” said the judge.

Speaking in a low-pitched voice with little emphasis, Enoki explained that first-degree murder required not only malice aforethought but premeditation. “It is for you to determine whether in the circumstances of this case, the killing took place with premeditation.”

Enoki stayed with his focus—obvious as early as voir dire—that Buck Walker murdered Muff Graham and Jennifer helped him, or perhaps even instigated the murder.

“The law imposes responsibility in a murder case on more than just the person who does the actual killing. You don’t escape the grasp of the law by merely letting someone else perform the crime of which you are a part. In fact,
an accomplice does not have to even be present at the scene of the crime or even know all the details of how the crime is to be committed
. In this case, you can find Jennifer Jenkins guilty if she aided and abetted Mr. Walker in any way in murdering Mrs. Graham.” That would include, Enoki pointed out, her “inducing” or even merely “counseling” Walker.

“Now, the judge will instruct you that the law does not view circumstantial evidence as having any less weight or value than direct evidence.”

He was approaching the legal heart of the Government’s case. “The concept of circumstantial evidence is an important one for the prosecution, since quite obviously we have no eyewitnesses to any killing. However, it is our position that the circumstantial evidence in this case leads to the conclusion that Jennifer Jenkins is criminally responsible for the murder of Eleanor Graham on Palmyra Island.”

Because of the “most unique circumstances of the case,” Enoki asked who else but Buck Walker and Jennifer Jenkins could possibly have committed the murder. “
There was no one else there
,” he said pointedly.

Enoki quoted me as saying that Walker was “the kind of guy you wouldn’t want to meet in a dark alley,” but reminded the jury that Jennifer never saw her lover in that light. “She lived with him for more than a year prior to the trip to Palmyra. She knew he was on parole. She knew he had been arrested on drug charges. She knew he carried guns. She agreed to help him escape from those drug charges, even though it meant breaking the law herself. So, we are talking about a woman who not only had no hesitancy about associating with an ex-convict, and a person on the run from a pending prison sentence, but she actually
assisted
him in doing this.

“She devoted her money, her time, and even her labor in preparing the craft they used to escape, the
Iola
. She was willing to sail off with him into one thousand miles of ocean without even knowing how to navigate. So, we’re talking about an adventurous woman, one who was clearly willing to take a lot of chances with Mr. Walker. And she appeared to be attracted to those same qualities that caused others to be alarmed about him.

“The converse is likewise true. Mr. Walker thought a lot about Miss Jenkins. He knew she could turn him in at any given time, yet he was willing to take the same voyage off into parts unknown with only her as his companion.”

Reminding the jury what kind of people Mac and Muff Graham were, Enoki said, “If you were to pick two couples that would be the least likely to get along on a deserted island, you couldn’t get much further apart than these two couples. The one major identical characteristic is they both wanted to be on Palmyra alone. And that served to make them even further apart. Because they resented each other’s presence.”

Enoki conceded that some evidence proved interaction between the two couples, but added: “No one ever saw Miss Jenkins or Mr. Walker
aboard
the
Sea Wind
. For all of Miss Jenkin’s claims of interaction with the Grahams, after July you will find in her diary that there is no reference to her or Mr. Walker being aboard the
Sea Wind
.”

After reminding the jury of Muff’s being upset when Don Stevens and Bill Larson invited Jennifer to go on an island outing with the Grahams, Enoki moved on to Jennifer and Buck’s food situation. They were low on supplies “from the outset,” he said; “the evidence is clear they were facing a severe food shortage. There is no doubt she told Tom Wolfe when he was there—and he left the island on August 17th—that she was sick and tired of eating coconuts and fish. Certainly it was not by choice that she was reduced to this diet.”

Enoki suggested that it would have been harder for Buck and Jennifer to live off the land than for someone like the Grahams, whose motorized dinghy enabled them to troll for fish.

The prosecutor struck at the issue of the
Iola
’s unseaworthiness. He summarized the testimony of various visitors to Palmyra who had noticed cracks in the fiberglassed hull of the
Iola
and heard regular pumping of the boat’s bilge.

“There’s a big difference between
thinking
that your boat might make it to another island, and
knowing
that your boat is going to make it. The difference really is that your life hangs in the balance. We’re talking about one hundred and seventy-five miles of ocean between Palmyra and Fanning, and two people who had all kinds of problems sailing
with
the wind and
with
the current down from Hawaii. In fact, they took on so much water during their trip to Palmyra, they had to pump every day after they got there.

“And so you have to put yourself in the position of Miss Jenkins and Mr. Walker, looking at that trip, looking at the wide expanse of water, listening to people warn them—Mr. Wheeler told them it was an impossible trip—a trip that was
against
the wind and
against
the current. Miss Jenkins knew quite well how dangerous it would be to try to sail to Fanning. She even told the Leonards that she’d never leave Palmyra on the
Iola
. That’s the degree of confidence she had in the
Iola
.

“I would like you to keep in mind what is really the bottom line of this never wanting to leave Palmyra on the
Iola
question. She never
did
leave Palmyra on the
Iola
. And that is, after all, what really brings us here in this trial. Jenkins and Walker not wanting to leave Palmyra on the
Iola
, and having left it on another boat.”

Enoki reminded the jurors of Jennifer’s “curious diary entry” of August 5, 1974, just weeks before the Grahams’ disappearance, that she and Mr. Walker spent the night “drooling and dreaming” about their next boat.

Enoki next discussed the all-important cake-truce testimony, reminding the jury what Curt Shoemaker had said about his last communication with the
Sea Wind
on August 28. “Not only was the visit unexpected by the Grahams, but it’s in the nighttime on top of it. There was a reference from Mac of a ‘truce.’ Now, this contradicts all of Miss Jenkins’s claims that there was nothing but a normal relationship going on between these two couples. The word ‘truce’ implies not the rosy picture that was painted by Jennifer Jenkins.

“You recall Tom Wolfe saying that Miss Jenkins said the two couples were not really getting along—or his impression was that they were not really getting along and not talking. The Leonards testified they left the island due to the situation they saw there. And recall, finally, Muff Graham saying she feared she wouldn’t be leaving Palmyra alive when she talked to Evelyn Leonard on their departure. Muff was crying at the time. It’s not the picture of the cordial relationship that Miss Jenkins told you about.”
Enoki pointed out that after this unexpected nighttime visit to the
Sea Wind,
the Grahams were never heard from or seen again
.