And Never Let Her Go (67 page)

The defense witnesses were weak—character witnesses, some of whom affirmed that Anne Marie had often called Tom at his office, one who had seen him out at dinner once with a woman “who had a very full head of hair,” some who apparently had been called to dispute the depth of Anne Marie's affection for Mike Scanlan. The E-mail was trotted out again, full of banter, trivia, and menus. Bob Donovan was called for an exhaustive examination that might ferret out conflicting statements made to him by Debby MacIntyre.

In a case that had become more and more convoluted, the defense called an unlikely ally: Squeaky Saunders—the man whom Tom had prosecuted in the days when he was a young criminal attorney. When Ferris Wharton pulled the Saunders case file to prepare for cross-examination, he was fascinated to read that Squeaky, who was still incarcerated, had been convicted of shooting his victim in the head and attempting to dispose of the body in the Delaware River, where it was soon discovered. Judging from the placement of the blood on the missing sofa from Tom's great room, it was likely that Anne Marie had also been shot in the head. It was almost as if Tom had refined the MO of the Saunders case, correcting, he thought, Squeaky's mistake by disposing of Anne Marie's body far out in the ocean.

Squeaky's testimony, however, dealt not with murder but with his assessment of Nick Perillo as an untruthful prison snitch who was not to be believed. In a trial rife with interesting headgear, Squeaky held his own; he wore a towering turban.

In his cross-examination, Wharton suggested that Squeaky was testifying for Tom because he hoped his murder conviction might be
overturned if he could prove prosecutorial misconduct—something he had been claiming for two decades. If he helped Tom now, Wharton suggested, it was possible that Tom might admit errors in the 1975 trial in which he had been one of the prosecutors.

Joe Oteri was furious and jumped to his feet to object. “That's totally unethical of Mr. Wharton!”

Wharton, usually slow to anger, responded, “If he's going to accuse me of something unethical, I demand an apology in open court.”

It was a frustrating trial, made more so by the rising heat in the courtroom and the spectators packed into every spare corner of space. Judge Lee knew that tempers were bound to flare and he watched the combatants carefully. Usually he was able to defuse situations with his wry humor before the court and in sidebar conferences. But ever since Tom had attempted to fire his attorneys en masse, morale was low. Joe Oteri told a reporter that some mornings he felt like pulling the covers over his head instead of going to court.

Joey Capano was scheduled to appear next in Tom's defense. Although he looked as handsome and tanned as ever, Joey confided to reporters that his health was not good; he feared he had inherited Louis Sr.'s heart trouble. In what seemed like one long run-on sentence, he described his heart attacks and his sixteen cardiac surgeries. He said his wife, Joanne, had once inadvertently saved his life as she reached for the phone to call 911 in the middle of the night. “I wasn't breathing,” he said. “She thought I was dead, but she leaned on my chest when she grabbed the phone and revived me.”

As he took the witness stand, Joey had five weeks to go before yet another surgical procedure on his heart. Marguerite had so many worries about her boys. Unlike Louie, Joey was a very casual dresser, his former-wrestler's body straining at the seams of his jacket. As he gestured, reporters saw that he had lost a fingertip on one of his hands (he had caught it between two boats).

Joey testified that Tom had come to him in March of 1996 for advice on what to buy Gerry to show how grateful he was because Gerry had been so nice to Tom's daughters. “I suggested that he purchase something such as a cooler,” he said. “I said Gerry could always use one of those.” There had been nothing at all ominous about that purchase, he insisted.

Joey said that Gerry's memory was not all it could be because his drinking clouded it. “He tends to get things twisted,” he testified. Oteri nodded. Joey's testimony boosted Oteri's contention that Gerry was given to confabulation—to mixing up fact and fiction to fill the
“Swiss cheese holes” in his memory. To win an acquittal for Tom, it was absolutely vital that Gerry appear to be demented by drugs and alcohol. The Capano family was split right down the middle; Louie had spoken for Gerry, and now Joey was standing behind Tom.

J
OE
O
TERI
had gotten his “Swiss cheese” theory from Dr. Carol Tavani, the psychiatrist who examined Tom just after he was arrested in November 1997. Dr. Tavani testified to the depression that had gripped Tom in March 1998—a period that coincided with Debby's defection to the state investigators. On direct, Tavani testified to her concern for her patient and how she had tried numerous combinations of antidepression and antianxiety medications to bring him some relief.

On the witness stand, Tavani also diagnosed Gerry Capano for Oteri, and said she had found that he was a “confabulator,” with “Swiss cheese holes” in his memory. She even analyzed many of Anne Marie's writings and suggested that, in her opinion, they showed she had had a very pleasant and friendly relationship with Tom Capano.

Upon cross-examination, Ferris Wharton queried Tom's psychiatrist about the best way for physicians who deal with mental health to evaluate patients. Tavani agreed that it was vital to meet the patient and do face-to-face screenings before beginning treatment. There were so many factors to consider: body language, general demeanor, rapidity of response, the state of nourishment, eye contact . . .

“In fact,” Dr. Tavani offered, “most of our communication is nonverbal. Eighty-five percent of our communication—from those who have studied this sort of thing—is actually nonverbal.”

Wharton had deftly led the psychiatrist into a trap; Dr. Tavani had never met either Gerry Capano or Anne Marie Fahey. She had not even watched as Gerry testified. By her own definition, she had no access to the essential 85 percent of nonverbal communication she needed to properly assess a patient. Tavani, who appeared squarely behind Tom, lost much of her credibility the moment she began to diagnose “patients” who were not and never had been under her care. Moreover, she agreed that she and Tom had built up so much rapport that he had refused to speak with any other prison mental health professionals.

More defense witnesses appeared, many to speak of rumor, not fact, and it soon became obvious that the crux of the defense case would be the testimony of Tom Capano himself. As Judge Lee had
noted, Tom did, indeed, want to get to the jury. He had been a popular, well-liked man for all of his adult life. Apparently he felt that his most compelling evidence was his own personality and his ability to explain to the jurors the reality of what had happened on the night of June 27, 1996.

D
EFENSE
attorneys in homicide trials fight to keep their clients off the witness stand. Once the defendant finishes with the friendly questions of his own lawyers, he will face cross-examination. Any legal expert would have warned Tom not to testify, and his four attorneys did just that. Judge Lee certainly went over the pitfalls with him. But those who knew Tom would have bet money that he was going to do it. He had backed off reluctantly from handling his own defense, but a week later, on December 16, 1998, Tom rose from the defense table to take the witness stand. The jury was taken off guard; the mouths of three jurors actually dropped open. The Faheys looked alert and suspicious.

Tom placed his hand on the Bible to be sworn in, but as he sat down, his arm hit it, knocking the Bible from its place. He tried to grab it as it fell to the floor, but failed. It was a jarring moment. Someone far back whispered low enough so only her neighbors could hear, “So much for God's truth.”

In a navy blue suit and red tie, with his floppy pompadour neatly combed, Tom was ready to explain everything in his own words. He seemed self-contained and happy to have his time in the spotlight. His cheering section was packed with relatives—his mother in her wheelchair with his cousin Loretta, his daughters, his extended family (but not Kay), all of them smiling tensely at him. Anne Marie's family was there, too, to hear, for the first time, what Tom might say about their sister's disappearance. There were new faces in the gallery, and some who had been there every day without fail. Emily Hensel and Kurt Zaller were the most constant court watchers—they had been first in line every morning since the first day.

T
HE
court transcripts of Tom Capano talking about himself and blaming others for the crimes he was accused of would fill nine transcript books—books whose type had been reduced so that four pages could be printed on one. In person, he was a natural talker, very competent and in control. He had a wonderful voice, soft and reassuring, a voice that might have belonged to a movie star, a preacher, or a politician. He spoke directly to the jurors, giving them
more of his attention than he gave to Joe Oteri, who conducted the direct examination.

Tom gave his life's history, sparing no good deed he had done and emphasizing that he was not as wealthy as his brothers. In a sidebar, the state objected to an endless recitation of Tom's benevolence and Oberly said it was only traditional character evidence. Connolly reminded the defense attorneys that if they “wanted to get in all the good stuff, we have to get in all the bad stuff.”

At this point Judge Lee sided with the defense attorneys, but warned them, “At some stage before you canonize him, understand that there will come a time and place when the other side of Tom becomes an issue.”

After he had finished telling about his work with the church, the poor, the elderly, and small children, Tom answered questions about his brother Gerry, pointing out that he was “an overgrown kid” who had been nice to Tom's daughters. And it was perfectly natural that he had purchased a large cooler to say thank you to Gerry. He had put the cooler in the crawl space under his house, however, waiting for the family Fourth of July party to give it to him.

There was nothing new in Tom's testimony; he stuck close to the scenario already presented by the defense, although he often wandered off into long, ponderous explanations. When he did that, he asked Oteri, “Am I rambling?” and explained that his medications had not kicked in or, conversely, had kicked in too much.

When Tom spoke of Debby, it was to describe her as a woman who had virtually forced herself on him. “I wasn't particularly interested in fooling around with somebody who—that if I did—could easily result in the loss of my job.”

He was far from gallant. There was an audible
whoosh
from the gallery when he said, “Secondly, Debby was by far
not
the most attractive female of the group. . . . And, third, one of the things you learn playing high school football is there's a phrase beginning with
B F.
[Buddy fucking.] You never do that,” Tom told the jury. “Her husband, Dave, wasn't a friend of mine, but we worked together—you just never fool around with a friend's lady.”

But of course, he had.

Tom's testimony continued day after day, morning to late afternoon. After he had pointed out how duplicitous Debby MacIntyre was and that she was not to be believed, he began on Anne Marie Fahey. Tom made it a point to refer to Anne Marie, her family, and her friends by their first names, as if to show that he was intimately acquainted with all of them. And in a sense, he was; he had insinuated
himself into her life, demanding to meet her friends and family, to know everything about them—just as he had made it a point to know everything about Anne Marie.

It was four days before Christmas when Tom half smiled as he told the jury how well he had known Anne Marie and how much she had trusted him. “She told me all the deep dark secrets of the Fahey family. I know them all,” he confided. “Again—assuming she was telling me the truth. And one of my vanities is that I'm pretty good at keeping confidences. I don't intend to talk about them. I didn't intend to talk about them then and I don't intend to talk about them now.”

Almost immediately, Tom set about smearing Anne Marie's image. “She was absolutely insistent [about telling of her personal background]. She told me she had a very wild period in her life when she was, in her own words, promiscuous. . . . She felt compelled to tell me that she had been so wild that she had been tested for AIDS. I was expecting some deep dark secret.” Tom chuckled.

He continued to expose a dead girl to a list of smirking surmises about her transgressions. She had once dated a man of another race, she had had a “nervous breakdown,” and she had anorexia. Still saying how good he was in keeping confidences, Tom wrinkled his forehead trying to think of more of Anne Marie's alleged secrets to tell the jury. “There are probably other confidences she shared with me,” he apologized, “but I don't remember right now.”

To anyone listening, Tom's testimony about Anne Marie was a brutal exposure of her life as
he
wanted the world to see it. There was no way of knowing if what he was saying was true. In his recitation, Tom was always the kindly friend who gave her good advice on friends, relatives, and financial matters. He had been unfailingly generous. He had bought most of her clothes and made sure that she had enough to eat. He alone had known what really went on in her heart.

At one point, Tom told the jurors that Anne Marie hadn't even been a very good Catholic. “Anne Marie was not a devout Catholic just as I'm not a devout Catholic. . . . We were both what are referred to as ‘cafeteria Catholics.' Those things we liked, we did—and those things we didn't like, we ignored.”

No one doubted that Tom was directing his own case now. The life seemed to have gone out of Joe Oteri. He would ask a short question and his client took off from there. Tom was a race car out of control, talking about whatever he wanted and apparently convinced that he was making a good impression as he described Anne Marie's failings and his efforts to look after her.