And the Sea Will Tell (26 page)

Weinglass’s expression had darkened.

“I bring up Allard,” I offered, “because he’s the only other member of the activist left I’ve personally known.”

“He was not trusted by the left,” Weinglass said flatly. “I am
not
an admirer of his.”

I smiled to myself, realizing just how far to the left Len Weinglass was coming from. (I would tell him, at a later time, that being as far to the left as he was, one would think he would have “both feet planted very firmly in the air,” yet I found him to be a sensible, down-to-earth guy. He chuckled.)

With that, we turned our discussion to Jennifer Jenkins.

I
N
A
PRIL
1982, after further sessions with Jennifer, I made a decision to defend Jennifer Jenkins against the charge of first-degree murder. I made another decision: since Buck and Jennifer had been together throughout the Palmyra period, and both had seemingly been acting in concert thereafter, I would have to rewind the past and try to separate them. I instinctively knew that a key way would be to don my old DA’s hat and prosecute Buck Walker at Jennifer’s trial. Despite Jennifer’s protestations, I was certain that Walker was responsible for the brutal murders of Mac and Muff Graham.

Weinglass, however, told me he was uncomfortable with this approach. “I’m afraid if Buck Walker goes down,” he said, his voice filled with doom, “so will Jennifer.”

From the moment I take a case right up to the time of a jury’s verdict, I always have tremendous confidence I will win. For some inexplicable reason, the feeling comes over me that I can’t lose. This trial would shake my confidence more than any case I had ever tried.

M
AY
5, 1982

U
NEARTHING A COPY
of the transcript of Jennifer’s boat-theft trial was not easy. But I had to have it. The transcript would undoubtedly be used by the prosecution to attack Jennifer’s credibility at her murder trial whenever her testimony varied from it. However, Weinglass did not have a copy. He told me that one of Jennifer’s former attorneys had the transcript, but when I spoke to the lawyer on the phone, he couldn’t find it. Eventually, I learned it had been put in storage in a Los Angeles warehouse with other old unrelated files.

When I was finally able to lay my hands on the 749-page transcript, I discovered a number of substantive inconsistencies between what Jennifer had told me and what she had testified to in 1975. They were disturbing.

She had told me that she and Buck had found a 1961 signed will of Mac’s on the
Sea Wind
. It provided that in the event of his death at sea, whoever he designated in another document (Jennifer never saw any other document) could take up to two years to return the boat to his sister, Mary “Kit” Muncey. Although she and Buck obviously hadn’t been so designated in this other document, Jennifer argued strongly to me that the language of the will implied justification for their plan to sail the
Sea Wind
for two years before returning it to Muncey. But in her theft-trial testimony, other than mentioning that she and Buck had found Mac’s will naming his sister, Mary Muncey, as the executrix of his estate, Jennifer had made absolutely
no mention
of this two-year grace period. On the contrary, she had testified that when she was arrested in Honolulu, she and Buck had been on their way to Seattle to immediately deliver the
Sea Wind
to Kit Muncey.

With respect to the all-important day in question—August 30, 1974, supposedly the day Mac and Muff disappeared—I found two major discrepancies. In one of our first sessions, Jennifer told me that Buck had the
Iola
’s dinghy
all day
on August 30; in other words, she couldn’t have gone ashore unless he came and picked her up. It had occurred to me then that if Buck had possession of the dinghy that day, he would not have had to worry about Jennifer coming ashore while he was committing the murders. However, if
she
had the dinghy that day, then Buck would have had to worry about being caught, either in the act of killing Mac and Muff, or while disposing of their bodies. Buck’s having the dinghy, then, would be one piece of circumstantial evidence going in the direction of supporting my argument to the jury that Buck had
alone
murdered Mac and Muff. But if Jennifer had the dinghy…

Now I learned that, contrary to what she had told me, she had testified that she, not Buck, had the dinghy on August 30.

The second discrepancy was also alarming. She had told me that on the morning of that same critically important day, she and Buck had gone back and forth between the
Iola
and his camp bringing things like a camping stove, lantern, and articles of clothing back to the boat in preparation for their departure. But she had not testified to this activity at her trial. Rather, the clear implication of her testimony was that she had stayed aboard the
Iola
all day.

Of course, I confronted Jennifer with these inconsistencies at our next meeting. She was not surprised and answered calmly. With respect to the will, she explained that her lawyers at the theft trial had advised her not to testify about the subject provision in the will or about her and Buck’s plan to return the
Sea Wind
after two years. “They said it sounded unbelievable,” she explained.

When I countered that even before she had any lawyers, she had failed to tell FBI agent Calvin Shishido about the will and its unusual provision, she replied that she had simply been too frightened and confused to tell him the whole story, and that she also knew that the provision, since it did not apply to them, gave them no legal right to take the
Sea Wind
.

But what she did tell Shishido was even worse, yet a third version of events. Testifying at her trial that she and Buck intended to bring the
Sea Wind
back to Mac’s sister
immediately
but telling me they intended to wait for
two years
was bad enough. But when she told Shishido that the reason she and Buck never notified the authorities about what happened to Mac and Muff was that they knew if they did, the
Sea Wind
would be taken away from them, and they believed the Grahams would want them to have the boat, Jennifer was in effect telling Shishido that they
never
intended to return the boat. Why, I asked her with some heat, had she told Shishido this outrageous as well as very incriminating story? She answered that she couldn’t admit the
real
reason why they never reported the Grahams’ disappearance. Buck had insisted they couldn’t have any kind of contact with the authorities because he was a fugitive. And when she spoke to Shishido, she was still protecting Buck’s identity.

“What about your telling me that you were on and off the
Iola
during the morning?”

“I was.”

“There’s no reference to that in your trial testimony.”

She shrugged. “I guess no one asked me.”

“Jennifer, this is important. Very important. I’m going to ask you again
—who
had the dinghy that day? You or Buck?”

“As I remember, Buck had the dinghy that day,” she answered, without hesitation.

I couldn’t help but wonder whether Jennifer, in the years since her theft trial, had figured out the significance of who had the dinghy that day and had altered her story accordingly. It was a chilling thought with enormous ramifications.

“Then why did you testify in 1975 that
you
had the dinghy?”

She shook her head. “I honestly don’t know. I’ve talked to so many people about the case over the years. Sometimes it’s hard for me to remember what really happened that day. But I think Buck had the dinghy.”
^*

I knew witnesses could become confused by all the questions and proposed scenarios suggested to them by the police, prosecutors, and defense attorneys, sometimes not remembering if something they are saying actually happened or was an image or thought implanted in their mind earlier by someone else. With the passage of time added—in this case, eight years—variations in anyone’s story could be anticipated. But Jennifer’s prosecutors would not look upon these discrepancies so charitably, and could use them to discredit her with the jury.

There was another, even more serious, problem I would have to deal with at Jennifer’s murder trial. She admitted to me that she had committed perjury at her theft trial.

Not that her perjury surprised or shocked me. To people unfamiliar with court proceedings, the word “perjury” can set offlights and sirens. But in fact, perjury occurs at nearly every trial. A distinguished former member of the New York Bar once observed: “Scarcely a trial is conducted in which perjury does not appear in a more or less flagrant form.” Perjury is so common that attorneys are not only unsurprised by it, but even expect it.

Although Jennifer had told several lies on the witness stand, the main one concerned the final fate of the
Iola
.

She told me it was Buck’s idea to leave Palmyra on the
Sea Wind
and that she had originally balked at the suggestion, finally relenting when he argued that the
Sea Wind
, left unattended in the Palmyra lagoon, would be vandalized. They would be respecting Mac’s love for the
Sea Wind
by protecting her, Buck had said. That made sense to Jennifer and she had agreed. But I discovered that at her theft trial she had served up the story (the same one she told Shishido) about trying to leave on the
Iola
before it grounded on the reef, foolishly sticking to that lie even in the face of damning photographic evidence to the contrary. Jennifer told me that shortly after those pictures of the
Iola
and
Sea Wind
were taken, Buck had sunk the boat by opening up all of the
Iola
’s hull fittings.

“When I last saw our boat,” Jennifer said, “she was sailing toward the horizon, slowly sinking. It made me very sad.” She went on to explain that Buck, even before they left Palmyra, had concocted the story of the
Iola
’s grounding in order to justify taking the
Sea Wind
. He told her the authorities would never believe the true story—that they were acting out of concern for Mac’s wishes.

There are two basic types of perjury in a criminal trial. In the first, a guilty defendant denies under oath that he committed the crime. The prosecutor merely blinks his eyes at this type of perjury and looks the other way, because he knows it is a form of self-defense that is inevitable. If the defendant were going to admit his guilt, he normally would have pled guilty and there wouldn’t have been any trial. The second form of perjury is not self-defensive in nature. The most egregious example would be a witness knowingly accusing an innocent person of a crime. This type of perjury, if it can be proved, is not overlooked, resulting usually in a criminal prosecution.

Jennifer’s lies were in the nature of self-defense; hence, relatively speaking, more understandable than the second type of perjury. But I still had reason for serious concern. Her lies under oath before the previous jury could very possibly destroy her credibility with the jury at her murder trial.

The inescapable reality I faced with Jennifer was the prosecutor arguing to the jury in his summation: “
Miss Jenkins admits she lied to another jury. She says she is telling the truth now. If we know she lied before under oath, why should we believe her now?
” If everything else she had done and said wasn’t already enough, it could be a clinching argument to sway the jury against Jennifer.

“Well, what do you think?” Jennifer said. “Did I do a good job of making it tough for you?” She had a smile on her face, but she wasn’t really smiling.

“I don’t mind tough cases, Jennifer. What I resent about you,” I said with a straight face, “is that even though you say you’re innocent—and I believe you—you went around acting guilty. That’s hypocrisy.”

Jennifer chuckled, a real smile dissolving the rented one.

“Let me tell you, Jennifer, what the trial is going to be all about,” I said. “The unique circumstances of this case come down to a matter of basic math. When four people are on a deserted island, two are murdered, and the remaining two take off in the victims’ boat and otherwise act very suspiciously, as you and Buck did, most reasonable people would conclude that these two are guilty. So the prosecution’s case is essentially going to be—almost has to be—that four minus two leaves two. And I’m just going to have to convince the jury that four minus two leaves one. And that the one killer is Buck.”

Jennifer smiled once again. “Good luck,” she said.

Her tone suggested that
I
was the one who had the problem and she was good-naturedly wishing me well in my effort to solve it. Jennifer was amazing, I said to myself.

I
WAS TO
have more problems preparing Jennifer for trial than with any other witness I could remember. Typically, when I interview a witness, I write down everything the witness says in narrative form, as if it were a straightforward factual account of events. Later, I convert the material into tentative questions and answers. In the nature of things, there will always be many modifications to my original Q and A, but with Jennifer, the changes were endless. Often, entire pages of questions became useless because she would add a different twist to an incident we had already covered in detail. I was also constantly having to expand my line of questioning because Jennifer would suddenly open up an entirely new area that needed to be explained or covered. The difficulty of preparing her for trial was reflected in the numbering of my pages of questions. It degenerated to the point where it was rare for one consecutively numbered page to follow another. For instance, between pages 43 and 44 there soon appeared pages 43 (a), 43 (b), 43 (c), and so forth. Then, later, for further additions between pages 43 (b) and 43 (c), I would have to resort to 43 (b) 1, 43 (b) 2, 43 (b) 3…