And the Sea Will Tell (29 page)

But even though I strongly believed in Jennifer’s innocence, I of course could never be 100 percent certain. How could anyone who wasn’t there be sure? And the possibility of her guilt, however remote in my mind, was something I had to deal with.

I don’t think any lawyer in the country works any harder preparing his case than I do. More than once, the thought came to me that if Jennifer
was
guilty, there was something obscene about my making use of every ounce and fiber of my ability to get her off. Conceptually, the notion that I was not on the side of two decent people who had been brutally and nightmarishly murdered, but fighting with all my mental strength on the side of one of their cold-blooded murderers, was more than immoral to me. It was indescribably vile.

But I felt confident that this fleeting image was a false one. In discussing every detail of the case with Jennifer over so many hours, there simply was nothing, nothing at all in her demeanor or mannerisms, in her body language, that made me feel I was talking to a guilty person. There even seemed to be, always, a wholly valid or at least reasonably acceptable explanation for her inconsistent statements and failure to mention certain things to me.

My conviction wavered only on the few occasions when Jennifer’s personality seemed to change almost freakishly before my eyes, from the normally passive, vulnerable, and reactive to the assertive, confident, almost mechanical. Suddenly, I was talking to a different person. At these alarming moments I could conjure up the image of Jennifer matter-of-factly telling Buck, before the murders, “You do _____, and I’ll make sure that _____.” These thoughts were naturally highly disturbing to me, but not frequent, and, I felt, normal under the circumstances.

I also had to consider that if a strong belief in someone’s innocence, as I had with Jennifer, was not enough; if I had to be 100 percent sure of someone’s innocence before I defended them, either I’d have to stop practicing criminal law or my wife would have to get a paper route.

In short, unless something came out of the blue, the die was cast. Jennifer and I would sink or swim together.

S
AN
F
RANCISCO
O
CTOBER
26, 1984

J
UDGE
S
AMUEL
K
ING AND
the various lawyers involved in the Palmyra case flew to the site of the upcoming murder trials for a hearing on pretrial matters.

I had not met the judge before, or the federal prosecutors, Elliot Enoki and Walter Schroeder.

In the informal setting of his chambers, Judge King looked and acted grandfatherly, complete with thinning gray hair, alert eyes magnified by glasses, and heavy jowls that shook like bowls of Jell-O when he chuckled. He always had a quip or two, even from the bench, and he appeared to enjoy making people laugh. I immediately like Sam King because he seemed to lack the silly pomposity found in so many judges. He was a regular guy.

Enoki, thirty-six, a straitlaced Japanese-American with a compact frame, had a perpetual wry smile that hinted he knew something no one else did. His straight black hair matted against his forehead as if he’d just stepped from the shower. A native of Hawaii, Enoki chose the mainland for his advanced schooling, receiving his undergraduate degree in English literature from Northwestern, and his law degree from the University of California at Davis. Four years with the state public defender’s office in Hawaii following law school convinced Enoki that he’d rather prosecute the bad guys than defend them. Becoming an Assistant U.S. Attorney in 1978, in just six years the unmarried, hardworking, and always gentlemanly prosecutor had risen to the position of First Assistant U.S. Attorney, and had become the top trial lawyer for the Honolulu U.S. Attorney’s Office. Enoki alone, backed by the investigative might of the FBI, would have been a formidable courtroom opponent. But Walter Schroeder, a Department of Justice prosecutor in Washington, D.C., had recently been assigned to assist.

Since it was unusual for a prosecutor from headquarters to be sent to San Francisco to assist a Honolulu prosecutor (normally, Enoki’s co-prosecutor would be chosen either from his office or the San Francisco office), when I spoke to Schroeder by phone the first time, I asked if Steve Trott, a former fellow prosecutor of mine at the Los Angeles District Attorney’s Office, had personally had anything to do with his assignment to the case. Trott was the third-ranking official at Justice. Schroeder said Trott had, confirming my hunch.
^*
This move signified that the Government was taking special measures to win the Palmyra murder case. I knew nothing about the unassuming, bespectacled Schroeder, but I suspected his abilities would prove to be considerable. Unfortunately, this early assessment was correct. Schroeder would unearth new and, if believed by the jury, very damaging evidence against Jennifer.

At this brief session, King’s first priority was setting firm dates for the long-delayed murder trials. Both sides agreed that the date earlier set for Walker’s trial, January 15, 1985, was too soon. May 28, 1985, was agreed upon as the new date, with Jennifer’s trial to follow.

We agreed there would be two alternate jurors in addition to the twelve regular jurors. At each trial, both the prosecution and defense would be able to “voir dire” (literally, “to speak the truth,” but in law, refers to the questioning of prospective jurors to determine their impartiality and qualifications) prospective jurors. This is the exception rather than the rule in federal jury trials, where the jury panel is usually questioned only by the judge. However, each side would be limited to just one hour of voir dire.

After a discussion of several other housecleaning details—such as the hours of trial—King ended the session by saying he would hear all remaining pretrial motions on January 11.

That didn’t leave much time for springing a few surprises I had in mind.

L
OS
A
NGELES

F
ROM THE
moment I decided to handle the case, I had literally scrounged around trying to come up with
some
evidence,
any
evidence, of Jennifer’s innocence (other than her denial of guilt) to counteract all the evidence of guilt. And if the past was barren, I would have to look toward the future.

I wrote to Elliot Enoki in Honolulu, reminding him that a few years earlier Len Weinglass had made an offer that Jennifer take a polygraph examination—an offer Enoki had declined.

“I’m well aware that the reason you declined was that she really had nothing to lose,” I wrote, “since if she failed the test, the results would not be admissible before the jury anyway.”

I told Enoki I was prepared to take our earlier offer a very significant step forward—Jennifer Jenkins was willing not only to take a polygraph test, but to stipulate, in advance, that the results could be introduced at her trial,
regardless of what they were
.

I was not shooting from the hip. In fact, I had carefully researched the results of Jennifer’s earlier polygraph tests. The first one, arranged by her then attorney, Barry Tarlow, was administered in Los Angeles on February 28, 1981, five days before she turned herself in to federal authorities. The polygraph operator was David Raskin, a noted polygrapher and professor of psychology at the University of Utah.
^*

Three key questions stood out in Jennifer’s first polygraph test:

Question 5: Did you participate in any way in causing the disappearance of Muff or Mac Graham?

Question 7: Were you present when Muff Graham was killed?

Question 10: Did you participate in any type of plan to cause harm to Muff or Mac Graham?

To all three she answered firmly: “No.”

On a scale where scores of +6 or higher indicate truthfulness (truthful goes up to +30), scores of -6 or lower indicate deception, and scores of less than 6 in either direction are considered inconclusive, Jennifer obtained a total score of +3, that is, “inconclusive.” After Raskin gave Jennifer the results, she explained that she had a problem with Question 7. In his written report of the test, Raskin quoted her on this point: “Obviously, I was on Palmyra when Mac and Muff died. I don’t know if they were killed or not, but they definitely died. I’ve always assumed their dinghy overturned and they were drowned and eaten by sharks. That question confused me. I said no but I was thinking yes. I’d like to take another test.”

Raskin agreed but suggested they do so at his Salt Lake City laboratory, which had more sensitive equipment. The reexamination took place there on March 3, 1981. After Raskin reworded the key questions, Jennifer approved their content.

Question 5: Were you involved in planning the disappearance of Mac and Muff Graham?

Question 7: Did you take part in deliberately causing the disappearance of Mac or Muff Graham?

Question 10: Did you have definite knowledge before this year that either of the Grahams had been deliberately killed?

Once again, she answered no to all three questions. This time, her score totaled +7. “According to the usual standard employed in the polygraph field,” Raskin wrote to Len Weinglass, “a score of +7 is a definite truthful outcome.”

My belief was that Enoki would refuse to agree to the offer I had made. Not only do prosecutors rarely agree to stipulate with the defense as to the admissibility of polygraph results, but I knew Enoki sensed an easy victory, and I therefore felt he would not want to open up any new side issue that could go the wrong way for him. But in the unlikely event he did agree, I had decided to let Jennifer take the test, as she continued to tell me she was willing to do. With a neutral polygraph operator, I felt her worst result would be “inconclusive.” But a risk was involved (more, actually, for Enoki than for me, since having the stronger case, he had more to lose), one I was hoping to avoid. On December 6, Enoki surprised me by telephoning to accept my offer—on the condition, however, that an FBI polygraph expert administer the test.

I phoned David Raskin in Salt Lake City and told him what had happened.

“I don’t have any confidence in FBI polygraph examiners,” Raskin snapped. “The Secret Service has better examiners. I know, because I’ve trained a lot of them.”

Raskin went on to warn me that Jennifer’s previous polygraph results suggested she wouldn’t ever receive any overwhelmingly “truthful” scores. “Don’t get me wrong,” he said. “I read the charts as indicating she’s innocent. But at plus seven, where the truthful factor can go as high as plus thirty, she was only borderline truthful, not dramatically truthful.”

Weinglass unhesitatingly opposed the Government’s condition that the FBI administer the test to Jennifer. “I don’t trust the FBI,” he growled. “Never have and never will.” I didn’t share his feelings, but obviously I did not want to proceed without his concurrence.

Subsequently, I made a counteroffer that we use the Secret Service, but Enoki balked. The prosecutor wanted no one but the FBI to give the test. We were at an impasse, but it was an impasse I welcomed, feeling it would enable me to make an argument I had been contemplating all along.

B
OOKS ON
criminal evidence have sections called “consciousness of guilt,” wherein all types of conduct and statements of an accused—flight, resistance to arrest, escape, destruction of evidence, silence in the face of an accusation, false or conflicting statements, etc.—have been held by courts to be admissible circumstantial evidence showing a consciousness of guilt. In addition to these conventional indications of guilt, as a prosecutor I had a passion for taking even unconventional and obscure specks of evidence and developing them into an argument showing consciousness of guilt on the part of the defendant.

Now, as a defense attorney, I find it very natural to argue the opposite side of the coin; consciousness of
innocence
, also illustrated by the conduct and statements of the accused. Strangely, however, the same books that have entire sections on consciousness of guilt never even mention consciousness of innocence. It’s as if the pivotal mechanisms of the criminal justice system have been established to prove guilt, not innocence, perhaps the residual progeny of the notorious common-law rule (abolished by statute in England in 1701) that in cases of felony, the accused was not even allowed to introduce witnesses in his defense. It should be noted that the very term “circumstantial evidence” has come to mean circumstantial evidence
of guilt
. But there obviously can be circumstantial evidence of innocence, too.

If the jury were allowed to hear that Jennifer had offered to take a polygraph test and let them receive the results, I felt they would inevitably ask themselves why, if guilty, would she do this.

Absent a stipulation from both parties, courts routinely reject “polygraph evidence” on the ground that the test has not been proved to be scientifically reliable.
^*
Judge King would, I believe, reflexively lump what I was seeking to do under that rule, even though the reliability of the polygraph was not involved here, only Jennifer’s state of mind. To have a chance with Judge King, I’d have to arm myself with case law to support my position.

I spent a day and a half at the Los Angeles County law library reading virtually every case on polygraph evidence I could find anywhere in the country, only to discover that not a single one dealt specifically with the tactic I had created for Jennifer.

Though not precisely in point, I did finally find one, and only one, favorable case,
Commonwealth
v.
A Juvenile
(No. 1), 365 Mass. 421 (1974). Like Jennifer, the defendant offered to take a polygraph test and let the results come before the jury. The trial court denied the offer, but the appellate court reversed the defendant’s subsequent conviction, noting that “in view of the possibly damaging consequences” of the defendant’s offer to let the results of a “yet to be taken” test come in, there was sufficient ground for the judge to order the test and admit the results into evidence.

Of course, Jennifer’s case was different in that I was not seeking, as in the Massachusetts case, to have any actual polygraph results received into evidence; I only wanted the jury to know she had
offered
to let the results come in. But the Massachusetts court had recognized that where the accused has something to lose this is justification for departing from the basic rule. Inferentially, at least, this ruling went in the direction of supporting my position.

I filed a motion with Judge King’s court on December 19. In opposition to my motion, Enoki listed no authority to support his position (confirming my research that no court had yet dealt with the issue), simply arguing that the court “should not deviate from the well-accepted rule that offers to take polygraph examinations are as inadmissible as the results of unstipulated polygraph examinations.”

I knew I was mounting an uphill battle.

H
ONOLULU
J
ANUARY
8, 1985

A
T
4:00
P.M.
, a federal grand jury, on the basis of information provided earlier in the afternoon by Buck’s two chums, Williams and Ingman, returned a superseding indictment against Jennifer Jenkins and Buck Walker. In addition to the felony-murder count already filed against them, both were now charged with a second count of premeditated murder.

The prosecution had welcomed the new information from the two inmates as a major break in the case. It was in their interest to believe that Buck Walker, like many a caged felon, had confessed under the pathetic illusion of prison camaraderie.

The prosecutors also wanted to believe their tale, particularly Williams’s, that Walker had suggested Jennifer Jenkins participated in the killings. In fact, strong sentiment had developed among law enforcement officials that it was she, not Walker, who had been the brains behind the crime, while he had provided the brawn.