And Never Let Her Go (70 page)

With all that accomplished, Tom said, he had gone to Kay's house to spend the evening with his girls. “I saw them twice every day,” he said fondly. “The kids wanted pizza and to have me watch a video with them.” He couldn't remember what movie they had seen because he fell asleep.

Whenever Tom spoke of his children, he smiled expansively, and he seemed never to miss an opportunity to explain what a perfect father he was, how much his daughters adored him, and how he cherished them. This was, perhaps, not an act; Tom appeared to see himself as the ideal family man. And yet he felt no compunction—and never had, apparently—about betraying his wife. Tom testified he had left his girls that Friday night to drive the few blocks to Debby's house. Twenty hours after Anne Marie had died of a bullet wound in her head and he had disposed of her body, he slipped into a dreamless sleep in the bed of the woman he claimed had shot her.

In an aside, Tom testified that he had told both Gerry and Debby he would protect them. “I would assume the burden. Legal protection—emotional, mental protection,” he said, half smiling at the jurors. “I didn't want them to have to live with the same horrible feelings that I live with.”

Continuing his testimony, Tom said that on Saturday morning, he and Debby had slept late and “made love,” and then he had gone off to Air Base Carpets to buy a new rug for the great room. “I told her I was going to buy a new rug that would not go under the kitchen table so it would [not] get food stains on it.”

Colm Connolly sat at the prosecution table, listening, jotting down notes. He would remember every single word Tom was saying. It seemed odd to him that Tom would say he told Debby a lie about the replacement rug. If, as Tom insisted, Debby had been the one who shot Anne Marie and helped him give CPR to her bloodied corpse, would she not have
known
why it was necessary to buy a new rug?

Tom testified about the weekend and how annoying it had been to have investigators shadowing him, “hiding outside my children's home,” searching his house. It had been a terribly busy weekend for him. His girls were with him on Saturday night—and he spoke at length about that. Then on Sunday, June 30, Tom said, he had had to reassure Debby often, speak to Louie and “Kimmie,” and have dinner with Kay. And several jurors blinked slightly when he added that he had also been “due to see a young lady.”

“I told her I was running late,” Tom said, “and then I went to where she was living. She was not in particularly good shape [due to an ankle injury]. I mean, she was barely mobile, a very stubborn type of person: ‘I don't need help—I can take care of myself.' And I stayed with her for a couple of hours and, you know, tried to get her something to eat . . . she was on the first floor when I arrived, and I
got her upstairs in bed and I left . . .” Tom saw Oteri's look and trailed off, “. . . and I'll stop.”

So far the jury and the gallery had heard about Susan Louth, Debby, Anne Marie, and Tom's estranged wife, Kay, and now he had mentioned a mystery woman. And Connolly and Wharton were still looking for a way to bring in Linda Marandola, yet another woman, to testify. The man was apparently indefatigable.

Tom spoke of his anxiety when he realized the federal government had inserted itself into the investigation. Not only had he been concerned about coming forward at that point with all the force of the feds against him, but he had agonized over discussing Anne Marie's personal affairs.

“Directing your attention to early February 1996,” Oteri asked, “did you have occasion to acquire cash?” [Oteri had to find a way to explain IRS agent Ron Poplos's discovery that Tom had withdrawn $25,000 in cash in three segments around Valentine's Day 1996.]

Tom explained that he had. He had cashed checks on two consecutive days for $8,000 and $9,000. “It just seemed kind of showy,” he said, “to go back a third time—so that's why I asked Gerry if he could loan me the $8,000 in cash.”

Tom said he needed $25,000 near Valentine's Day in 1996—to help Anne Marie. He said he'd begged her to let him pay for in-patient care for her in a clinic for eating disorders. He wanted her to see how serious he was about wanting to help her by showing her the actual cash. But she had thrown it back in his face.

T
HIS
would be the last day in court before Christmas. Joe Oteri had a mountain of inflammatory testimony to neutralize before Colm Connolly cross-examined Tom, and he plodded gamely ahead. “In February 1998, you learned that Deborah MacIntyre did something, is that correct?”

“I learned that she had agreed to become a witness for the government.”

“Subsequent to learning that, did you go to anyone and tell them the story you've told here?”

“No one who wasn't privileged.”

“Is there a reason—tell the jury the reason,” Oteri urged, “why you didn't tell anyone this story prior to trial.”

“Well, I'm kind of a confidential person,” Tom began. “You know, it would just sound like sour grapes at the time. I mean, she—not she, but the slickster from Philadelphia [Tom Bergstrom,
Debby's lawyer], who outwitted us. . . . And I never—to this day—I still can't believe that Debby would lie so much. I mean, that's not really Debby who came in here. So—”

“But, sir,” Oteri said, managing to interrupt Tom's aimless flow of words, “you've just been
betrayed
by a woman you've been protecting for two years—”

“A woman I'm in love with,” Tom declared.

“Would you not, at that point,” Oteri persisted, “go on a rooftop and scream, ‘I'm taking the fall for something she did'?”

“. . . I was basically out of my mind for a couple of weeks and not thinking rationally,” Tom explained. “There were issues with changing attorneys and my mental status and condition. That's when they really had to jack the drugs up. . . . I was just going to be looking to put together a final legal team and follow the advice of the four chiefs.”

“Which was to trust the jury?” Oteri added quickly.

Tom explained that he had gone out of his mind in Gander Hill after he learned that Debby had betrayed him. He had become suicidal. “I was operating on about half my cylinders. I was confused. I was not thinking clearly. Solitary confinement has a significant effect on people. I learned,” he said bleakly, “that the woman I loved and had been protecting had turned on me and stabbed me in the back, betraying me.”

Tom's expression was pitiful as he said he had never betrayed Debby; he had torn
her
letters to bits and flushed them down the toilet to protect her. He was “crushed” when he learned of her betrayal, full of various medications, vulnerable, and he had allowed himself to listen to Nick Perillo when he “suggested that I do something to get revenge.

“He brought it up,” Tom told the jury. “He played on the anger phase of it and told me that his profession was burglary and that I should allow him to either burglarize it himself or arrange a burglary of her house. And my brain was like mush then. . . .”

“And what happened after he made this suggestion?”

“It preyed on my mind,” Tom said. “He kept bringing it up. At first, I was totally nonresponsive, and at one point I did succumb to it. I let my anger and frustration and hurt get the best of me and I agreed with him to do it.”

Tom said that Perillo had asked for directions and an outline of the house. He admitted drawing the plans but he said they had taken him no more than twenty minutes to scribble down. Because he was
so hurt by Debby's betrayal, he had added the two very personal requests about the mirror and sex toys in her bedroom.

Tom insisted he had changed his mind a few days later and asked Perillo to give the diagrams back. But he never saw them again—not until they appeared in this courtroom. He said that Perillo had agreed with him when he decided against the burglary. “He said, ‘This is something you should not do,' ” Tom recalled. “But he never gave them back to me because he told me he had seen someone he thought was an investigator enter my cell and he panicked and tore them up and flushed them down the toilet.”

J
UDGE
L
EE
closed court at 4
P.M.
on December 23. “Merry Christmas,” he said. “We will be back here next Tuesday.”

A
ND
when court reconvened, the jurors, who had been sitting with inscrutable faces, would have to make at least two major decisions. Was Tom Capano innocent, or guilty, of killing Anne Marie Fahey? And if they should find him guilty, should they recommend to Judge Lee that he receive the death penalty?

Outside the thick stone walls of the old courthouse, there were Christmas lights in the trees of Rodney Square and streaks of snow. But there was no sign of Christmas in Courtroom 302.

T
OM HAD A STUBBLY BEARD
on December 29—and not by choice; he explained to Joe Oteri that Gander Hill had run out of razors.

That day, Oteri finished up the last of his direct examination with a question that demanded an explicit answer. “Tom, did you kill Anne Marie Fahey?”

“No!” Tom said dramatically. “A thousand times,
no.”

“Thank you,” Oteri said. “Nothing further.”

“I loved Anne Marie Fahey,” Tom called after him.

“Nothing further.”

A
LTHOUGH
Ferris Wharton would have leapt at the opportunity to cross-examine Tom Capano, there had been no question about who
should do it. Wharton willingly stepped aside because it had to be Colm Connolly. Tom had despised the assistant U.S. attorney going into the trial, and Connolly had done nothing to endear himself to the defendant. Each day when he greeted Judge Lee, the jury, and the defense attorneys, Connolly never once acknowledged Tom. It maddened Tom further to be so completely ignored, and Connolly knew it.

Tom had no inkling of how dangerous Connolly might be to him. They had many things in common. Both had gone to Archmere Academy, where they were immensely popular and respected, and they were both attorneys. But there the similarities ended. Tom had long polished his own image as a clever attorney by surrounding himself with sycophants. His wealth, his charisma, and his connections had landed him a number of prestigious jobs, but the word in Wilmington's legal community was that he wasn't nearly as intelligent as he thought he was. On the other hand, Connolly was positively brilliant. He knew Tom's Achilles' heel and he was prepared to strike at it again and again to bring him down.

Courtroom 302 was jammed with spectators. Family members from every side were there, and a number of attorneys had come to watch the duel. The thermostat read eighty-five degrees, and it was so hot that Judge Lee dimmed the lights to give at least the illusion of coolness. The water had long since been drained from the air-conditioning system and they couldn't open the doors. They had already lost a couple of jurors to illness, and one after her arrest for possession of marijuana. As they neared the finish line, Lee didn't want to have to resort to any more alternates.

Tom's demeanor was entirely different now. He had obviously attempted to forge a bond with the jurors and had spoken directly to them when Oteri was questioning him. But as he turned toward Connolly, his smile was gone. He no longer looked friendly, and his stare was icy. His pinched expression showed his irritation.

Connolly and Wharton had planned this encounter with exactitude, jubilant when they learned that Tom was going to testify and they would be able to cross-examine him. Connolly's first questions hit Tom with the force of a boxer who jabbed, jabbed, and jabbed again before his opponent saw his fist coming. It was instantly apparent that Tom's control of the proceedings was over.

“Since June 28, 1996,” Connolly asked, “how many crimes have you committed?”

Tom repeated the question, buying time. “Whatever I did,” he answered finally, “—I have been charged based on the Perillo testimony,
but that's a false charge. Somebody said something in here about the way I withdrew money from the bank apparently violates a federal law—which was unknown to me [the structuring violation]. I asked my brother Louis to lie before the grand jury.”

“So you suborned perjury?”

“Whatever that is.”

“You asked him to lie. You are a lawyer. You know what perjury is?”

“Yes.”

“So you suborned perjury?”

“If that's the name of the crime.”

“So you obstructed a federal investigation when you asked him to lie before a grand jury?”

“Well, I don't know if that constitutes both crimes.”

“Objection, Your Honor,” Oteri said. “That is not a crime. It's an attempt to obstruct.”

“So you
attempted
to obstruct justice?”

“Well,” Tom said with a withering look, “if that's what it is, that's what it is. I thought I was asking him to commit perjury. I don't know much about federal criminal law.”

“You wanted Deborah MacIntyre to testify falsely at your bail hearing?”

“Yes, that's true.”

“Any other crimes you committed after June twenty-eighth . . . ?”

“None that I know of.”

“Desecration of a corpse?”

“I
said
what I did on June twenty-eighth—I already mentioned that.”

“So, that's three crimes?”

“No,” Tom said, and then proceeded to correct Connolly, precisely as he and Wharton had hoped he would do. “I asked my brother to lie before the grand jury. I did want Debby to lie to protect myself and also herself. And I said, generically to the first question, that whatever the crimes are that I committed on June twenty-eighth in the fact of my disposal of Anne Marie's body or anything related to that, yes, I'm guilty of them too, and I'm sure I will be charged with them.”